COMMON LAW

Common Law vs. Civil Law

The line that separates Canada's COMMON LAW and CIVIL LAW in quebec almost no longer exist, thanks to summary judgment trial Rule 18A implemented by Madam Chief Justice Beverly McLachlin and Mr. Justice McEarchen, amongst others.

Myth of Summary Trial

On April 3, 2004, in the Vancouver Sun, an article by Janice Tibbetts claims, The Court under Chief Justice Beverley Mclachlin has been giving robust interpretation of the Charter.

The Courts in Canada have turned into Caesars courts, thus making it impossible for an average citizen to obtain a fair and unbiased trial before a judge.

In British Columbia the judges come under the control of the Law and Equity Act but most judges, do not abide by the legislation, thus unfortunately, most judges do not apply the law as they know it and rather use their discretion to pass benefits

Frederic Bastiat, an 18th century French philosopher, wrote as follows:

The essence of the law is deceit

Bastiat's opinion is consistent with my views expressed in previous posts that the English common law system, which Canada inherited, is based on a feudal property system established by Norman gangsters to control and dominate the Anglo Saxon tribes of England.

The same system was then extended the remaining parts of England, to Wales, Scotland and Ireland, where it is was used to terrorize and destroy the prevailing tribal shared property systems and clear the indigenous peoples from their inherited lands.

These same indigenous peoples were then forced to migrate to all parts of the planet to escape the horrors of the common law and its corrupt magistrates who, as you should know if you know your history, hung men and women for the simple act of picking vegetables to eat from the property of a landlord.

In those new parts of the world, these refugees were, wittingly and unwittingly, used by the English Crown to persuade the native populations and other newcomers, unaccustomed the tyranny of this law system, to adopt the same glorious system of property in the hands of the few and the same wage slave labour system for the remainder.

The deceit inherent in this Norman based law system was then further elaborated with the invention of modern financial systems designed to allow the minority predator groups to enrich themselves at the expense of the remainder of society and with the invention of predatory taxation systems intended to also facilitate the transfer of wealth to the predators (rats), in Victoria, Ottawa, New York, and London.

COMMON LAW AND EQUITY

Click on the following:

Britannica.com

The common law has been romantically and inaccurately described as the law of the common people of England.

In fact, the common law emerged as the product of a particular struggle for political power.

Prior to the Norman Conquest of England in 1066, there was no unitary, national legal system. The emergence of the common law represents the imposition of such a unitary system under the auspices and control of a centralised power in the form of a sovereign king; and, in that respect, it represented the assertion and affirmation of that central sovereign power.

By the end of the 13th century, a refusal to deal with substantive injustices, because they did not fall within the particular parameters of procedural and formal constraints, bv necessity led to injustice and the need to remedy the perceived weaknesses in the common law system.

The response was the development of equity.

Common law remedies are available as of right.

Remedies in equity are discretionary, in other words, they are awarded at the will of the court, a depend on the behaviour, and situation, of the party claiming such remedies.

COMMON LAW AND STATUTE LAW

Statute law refers to law that has been created by Parliament in the form of legislation.

Although there has been a significant increase in statute law in the 20th century, the courts still have an important role to play in creating and operating law generally and in determining the operation of legislation in particular.

THE SEPARATION OF POWER

Although the idea of the separation of powers can be traced back to ancient Greek philosophy, it was advocated in early modern times by the English philosopher Locke and the later French philosopher Montesquieu and found its practical expression in the constitution of the United States.

The idea of the separation of powers is posited on the existence of three distinct functions of government, the legislative, executive and judicial functions, and the conviction that these functions should be kept apart in order to prevent the centralisation of too much power.

CIVIL LAW SYSTEM

In this category you will find political entities that, apart from other sources, have drawn their inspiration largely from the Roman law heritage and which, by giving precedence to written law, have resolutely opted for a systematic codification of their general law.

CIVIL LAW

In ancient Rome, the term jus civile ("civil law") was used to distinguish the proper or ancient law of the city or state of Rome from the jus gentium, or the law thought to be common to all the peoples comprising the Roman world, as developed and incorporated with the former through the praetors (magistrates) and jurists.

In the 5th and 6th centuries western and central Europe was dominated by Germanic peoples. Among the many strands that went into the weaving of the complex pattern of medieval law, the customs of the merchants and the canon law of the Roman Catholic Church were of special significance.

It was through the canon law that the ideas of ancient Rome continued to make their presence felt, even when, as a whole, Roman law had been forgotten.

In the late 11th century Roman law was rediscovered and made the subject matter of learned study and teaching by scholars in northern Italy, especially at Bologna.

In the Holy Roman Empire of German nations the reception was facilitated because its emperors cherished the idea of being the direct successors of the Roman Caesars;

the Roman law, collected in the Corpus Juris civilis by the emperor Justinian I between 527 and 565, could be regarded as still being in effect simply because it was the imperial law.

Decisive for the reception, however, was the superiority of the specialized training of Roman law jurists over the empiricist activities of the lay judges and practitioners of the local laws; equally decisive was the superiority of the Roman-canonical type of proceihire, with its rational rules of evidence, over the forms of local procedure involving proof by ordeal, battle, and other irrational methods. Nowhere, however, did the Roman law completely supplant the local laws.

So far as the content of the law was concerned, there developed various amalgams. Roman law strongly influenced the lav of contracts and torts; canon law achieved supremacy.

The rise of nationalism that accompanied the unification and stabilization of the European nations and their struggle for hegemony had an impact in the field of law through national codification of laws.

Because of the personality of their backer and the novel technique applied, great fame and influence were achieved by the Napoleonic codifications of the private and criminal law of France, especially their central piece, the Civil Code (Code Civil or Code Napoleon) of 1804. Codification continued after the Napoleonic era.

In Belgium and Luxembourg, which had been incorporated into France under Napoleon, his codes were simply left in effect.

The Netherlands, Italy, Spain, and numerous countries of Latin America followed the French model not only in the undertaking of national codification but also in the techniques and arrangements of their codes.

Naturally, their courts and legal scholars were, at least in the earlier decades of the 19th century, inclined to pay great attention to French legal learning.

In Germany national codification came considerably later than in France. Only a commercial code had been uniformly created by the independent German states shortly after the revolution of 1848, The unification of the criminal law came almost simultaneously with the political unification of the country, which occurred in 1871.

Codification of the organization of the courts and of civil and criminal procedure came in 1879. But the Civil Code (Bijrgerliches Gesetzbuch fiir das deutsche Reich) was not completed until 1896, and it did not take effect until January 1, 1900.

But all through the 19th century the vigorous German science of law exercised much influence in Austria (which as early as 1811 had codified its law in a technique different from that of France), in Switzerland, in the Scandinavian countries, and, later on, in most of eastern Europe.

When Swiss law was codified in 1907-12, it became the model for the Turkish codification of 1926 and strongly influenced that of China, which is still in effect in Taiwan.

Due to the different dates of codification and the different style and attitude of legal learning, the civil-law family of laws is thus divided into the French, or Romance, branch and the German, or Germanic, branch. Their main features are determined by those of their prototypes.

The legal system of Japan belongs essentially to the German branch, but it presents important features of its own national codifications.

CIVIL LAW AND COMMON LAW: DIFFERENCES IN SOURCES, CONCEPTS AND STYLE


Jurisprudence: style

Civil law judgments are written in a more formalistic style than common law judgments. Civil law decisions are indeed shorter than common law decisions, and are separated into two parts - the motifs (reasons) and the dispositif (order).

This is because civil law judges are especially trained in special schools created for the purpose, while common law judges are appointed from amongst practising lawyers, without special training. The method of writing judgments is also different.

Common law judgments extensively expose the facts, compare or distinguish them from the facts of previous cases, and decide (if not create) the specific legal rule relevant to the present facts.

Civil law decisions first identify the legal principles that might be relevant, then verify if the facts support their application (only the facts relevant to the advanced principle thus need be stated). (In Quebec, the common law methodology is followed.)

No Trial By Jury

In civil systems there is no jury trial unlike the common law. In the adversary procedure of the common law, arguments are addressed orally to the court, and the evidence is directly presented to it or to the jury.

In the 19th century, jury trial was widely adopted in civil-law countries, but only for criminal cases.

In the 20th century it was largely abandoned mostly in favour of the system of the mixed bench, on which professional, legally trained judges sit together with laymen and decide together with them not only, as the common-law jury does, questions of fact but also those of law.

In civil cases concerning matters of business or of labour relations, the lay members of the court are picked from among business people or from the circles of management and labour.

In common-law countries the mode of adversary procedure is still followed rather consistently in both civil and criminal cases.

In civil law countries witnesses are generally examined by the presiding judge, who has also the power to expedite the conduct of a case and, when he regards it as necessary, to influence the parties' conduct of the case.

Although it is conceivable that a judge having such powers may be swayed from strict impartiality, the scales can be balanced in favour of the party represented by counsel less able or less ruthless than that of his adversary.

Trial, following the civil-law tradition with which the maritime law is closely connected, was to the judge rather than to a jury, and procedure was rather non-technical and simple, though perhaps no more so than under any modern code. Grant Gilmore and Charles L. Black, Jr., The Law of Admiralty (N.Y.: Foundation Press, Inc., 1975), p. 35.

Under the Roman Civil Law, which postulates the State as of divine origin, all-wise and all-powerful, it becomes the duty of the State to seek to achieve happiness for all its subjects, in such manner as it may dictate, and, to that end, its own wisdom must override all private judgment in prescribing regulations for the whole range of human endeavor.

Under this latter policy, an extensive system of administrative law, with its particular and varied regulations, enforced by innumerable agents, boards and commissions, becomes necessary and inescapable.

Under the Common Law, which denies the divinity, omniscience and omnipotence of the State, which concedes no privileges, which accords to every man the right to work out his own happiness free from inter meddling by government, save where his actions may impair the like right of others, and which recognizes but one system of general law for all, rich and poor alike, high and low, enforced in ordinary courts, there is no function for administrative law to perform and no reason for its existence.

Adversarial vs. Inquisitive styles of Justice

Attorneys and Judges play different roles in the Common law and Civil Law as per the justice systems.

Adversarial justice:

The attorneys are expected to be totally loyal to their client, and only present favorable evidence. The lawyer exists to protect their client. Judge and Jury play a much more passive role of observer.

Inquisitorial Justice:

In Civil Law the judge takes a very active role in examining witnesses and arranging evidence.

In Common law it is based on case laws, and statutes which emphasizes supra-statutory or natural legal rights positivism, statutes are sources of rights principal of stare decisis recognized, case-by-case inclusion and exclusion and analogy lawyer and jurists work from statutory text.

Here is what John Frederic Carten, a trained legal counsel says on Common Law and Equity:

The piece praising the common law reads like a propaganda message from the Canadian/American Bar Association.

It is a principle of politics that politicians will always try to justify themselves by appealing to some higher authority. Firstly, they invoke the law: if that does not work, they invoke the will of the people; and if that don't work, they invoke the will of God.

The nice thing about invoking the will of God is that no one can check your source.

When invoking the law it is useful to keep in mind the words of Fredric Bastiat "the essence of the law is deceit".

What we generally call common law is actually two systems mixed in one, that is, English common law and equity.

When praising the common law it is useful to keep in mind that under common law a woman was considered a chattel, i.e. property, while under equity she was a person with rights, responsibilities, powers and duties like men.

Blackstone in his great work on the English common law (1756), incidentally a best seller in the US colonies after it came out, observed that the English common law did not extend to those areas of Ireland inhabited by the "wild" or native Irish who governed themselves with a system of equity called the Brehon Law named after the title of the jurists in that system.

The law of equity is governed by principles that do not permit it to be invoked in all cases. Some of these principles are:

He who seeks equity must do equity

Equity is a shield not a sword

He who seeks equity must come with clean hands

Equity will not assist a fraud

As further comment on the common law, readers should also consider that Scotland continues to have a separate system of law from England and did continue with its own legal system from time of the Act of Union (1701) onwards. The Scottish legal system drew its inspiration from many sources including Roman law.

After the Act of Union, it was a requirement that a Scottish law lord be a member of the legal committee of the House of Lords of England, the highest court in England.

Lord Mansfield, who is arguably England's greatest common law judge, was formerly a lawyer trained in Scot's law.

It was through a series of judgments by Lord Mansfield in the 1700's that the English common law developed many the concepts and principles of commercial law and morality that allowed industry and commerce to develop on a sure footing.

The source of Mansfield's legal genius was his knowledge of Roman law, a field of study that was commonly a part of the lawyer's education in Scotland.

As with the Brehon law in Ireland, Scottish law did not regard women as chattels or property but recognized them as legal persons.

If a source of Scottish law is Roman law, the same can be said of the civil code of Quebec which draws its source from the Napoleonic Code.

When Napoleon was a child, in Corsica, his father was a notary public and Napoleon spent a good part of his childhood reading a copy of Justinian�s Codex which was in his father's library.

Justinian's Codex is the great compendium of Roman law put together by the Emperor Justinian in the 3rd century AD.

When Napoleon devised the Napoleonic Code for his empire the legal scholars employed by him carry out this work remarked on his knowledge of the principles and categories of law which reflected his early education.

JFC (John Frederic Carten)