1.

The system of common law

Differences between common law and civil law systems

1. The system of common law

Before the Norman Conquest of 1066, Anglo-Saxon society was

fragmented into a number of kingdoms. The laws often differed from
one kingdom to another, and many of them were based on an oral
tradition rather than on written codes.
With the arrival of the Normans (ნორმანები) in England the old
system was swept away and replaced by an increasingly centralized
administration which eventually led to the emergence of a ‘common
law’, applicable to all parts of the country. Common law was essentially
a combination of commonly accepted traditions, principles, and judicial
precedents. (სასამართლო პრეცედენტები)
Later on, with the spread of British colonization, common law systems
spread to various parts of the globe including the United States,
Singapore, Pakistan, India, Ghana West Africa, Canada, Ireland, New
Zealand, South Africa, Hong Kong and Australia. A third of the world's
population (approximately 2.3 billion people) live in common law
jurisdictions. In common law jurisdictions the legal system is a mixture
of statutory law i.e. (that is to say) laws passed by a legislative body
(საკანონმდებლო ორგანო) such as Parliament, and judicial decisions
(სასამართლო გადაწყვეტილებები.) Indeed, one of the major
characteristics of common law is that considerable importance is given
to court decisions which can be a source of law. The common law
system operates on the principle that it is unjust to treat related facts
differently on different occasions.

1
Common law follows the doctrine of precedent -meaning that judges
must treat as binding the decisions adopted in similar cases previously
determined in courts of higher or equal status.

Differences between common law and civil law systems

Most nations today follow one of the two major legal traditions — civil
law and common law. However, a number of countries – such as
Canada, Scotland or South Africa – have hybrid legal systems.
(ჰიბრიდული სამართლებრივი სისტემები)
With the exception of the UK, the majority of countries in Europe
operate under civil law systems modelled on Roman law. The term ‘civil
law’ derives from the Latin iuscivile, that is, the law applicable to all
Roman civesor citizens.
In the eighteenth century, enlightened rulers and jurists in continental
Europe england, Scotland, Ireland produced comprehensive, systematic
legal codes such as Austria’s 1786 Code of Joseph II and France’s Civil
Code (known as the Napoleonic Code) of 1804. These codes were
shaped by the Roman law tradition and are the models of today’s civil
law systems.
Unlike the civil law system which is based on statutory law with
codified core principles (კოდიფიცირებული ძირითადი
პრინციპები,) the common law system is generally uncodified,
meaning that there is no comprehensive compilation of legal rules and
statutes. (სამართლებრივი წესების და დებულებების კრებული.)
While common law relies partly on legislative provisions
(საკანონმდებლო დებულებები), considerable importance is given, as
we have seen, to precedents where judges can actually
make law instead of merely implementing the law (კანონის
განხორციელება) . A common law judge therefore tends to have
greater authority or autonomy than a civil law judge.
Countries following a civil law system include former French, Dutch,
German, Spanish or Portuguese colonies or protectorates, including
much of Central and South America. Most central and eastern

2
European and East Asian countries follow a civil law structure. China’s
legal system is a mixture of civil law and socialist law, though Hong
Kong (a former British colony) follows the Common law system.
Several Islamic countries have civil law systems which contain
elements of Islamic law.

. Judges and magistrates in England and Wales

When taking the judicial oath, judges and magistrates swear to “do right to all
manner of people after the laws and usages of this realm without fear or favour,
affection or ill-will”.

The system for becoming judges and magistrates is very different from
Italy’s, and a distinction სხვაობა is made between judges and magistrates.

Judges
Although certain formal qualifications are required, there is no set career path as
in other countries such as Italy or the US. Becoming a judge in the UK has
traditionally depended as much on who you know as what you know. Although
the government is trying to ensure the judiciary is more reflective of modern
society, even today only one in 20 judges is non-white and fewer than one in four
is female.

To become a judge you must have a degree in law, or alternatively in some other
subject followed by a year-long law conversion course. Judges in the UK tend to
be picked above all from the top barristers, though this possibility is now open to
solicitors. The selection procedure for judges is presided დადგენა over by the
Commission for Judicial Appointments. მოსამართლეთა დანიშვნების კომისია
. The statutory კანონით გათვალისწინებული retirement age is 70 for judges
and magistrates.

3
There are several different types of judges. These include:

 Circuit judges who are appointed to one of seven regions of England and
Wales, and sit in the crown and county courts within their particular
region. სამხარეო მოსამართლე; აშშ-ს უმაღლესი სასამართლოს
მოსამართლეები, რომლებიც მიეკუთვნებიან გარკვეულ სასამართლო ოლქებს

 District judges: full-time judges who deal with the majority of cases in the
county courts. რაიონული ან საოლქო მოსამართლე

 District judges (magistrates' courts): full-time members of the judiciary who

hear cases in Magistrates' Courts, usually the longer and more complex
cases.

 High Court judges who are assigned to one of the three divisions of the
High Court – the Chancery Division, the Queen's Bench and the Family
Division.

 Recorders: ჩანაწერებიthis post is open to any fully qualified solicitor or

barrister with at least ten years' practice before the Crown or County
Courts.

Magistrates
Magistrates – also known as Justices of the Peace (JPs) – are trained, unpaid
members of their local community, who work part-time and deal with less serious
criminal cases, such as minor theft, criminal damage, public disorder and
motoring offences. საგზაო მოძრაობის წესების დამრღვევი.

Magistrates sit in adult criminal courts სასამართლო. , რომელიც

არასრულწლოვანთა საქმეებს განიხილავს( სისხლის სამართლის ) as panels
of three. All three members have equal decision-making powers but only one
member speaks in court and presides over proceedings. A qualified legal adviser is
available to the panel at all times.
Magistrates do not require legal training. However, they must undertake a
compulsory programme განახორციელო სავალდებულო პროგრამა of practical
training which prepares them to sit in court. Each magistrate should sit for at least
26 half-days each year.

4
 Magistrates deal with over 95% of all criminal cases, either in the adult court or
in the youth court. Magistrates cannot normally order sentences of imprisonment
პატიმრობის ბრძანება exceeding six months or fines exceeding £5,000.
Magistrates also decide many civil matters, including a range of issues affecting
families and children.
The Lord Chancellor appoints magistrates on the advice of local advisory
committees. When applying to become a magistrate an application form must be
filled in, and usually two interviews are held before a decision is made.
Local advisory committees try to meet the needs საჭიროების დაკმაყოფილება
of local benches in terms of maintaining a balance of gender, ethnic origin,
geographical spread, occupation, age and social background.
Magistrates are unpaid but may claim expenses and an allowance for loss of
earnings.

The jury system

Jury trials have been part of the English legal tradition since at least the
time of Magna Carta in 1215. But the function of a jury in medieval
England was very different from that of today. In the relatively
undeveloped legal scenario of post-Norman society, the purpose of a
jury was twofold: firstly to define what the law was, and secondly to
establish, through personal knowledge of the defendant, whether the
defendant was guilty or not.

In the modern jury system, a group of strangers are asked whether a

person did or did not commit certain acts. They do not bring a personal
knowledge of the defendant into the court, and they are expressly not
required to comment on the law. The judge’s role is to decide on which
laws are relevant and on which piece of evidence can be introduced.

5
Jury trials are used in many serious criminal cases in common law
systems. In the civil law system juries tend to play a much more
marginal role; the judge usually decides everything: law and facts.

Advantages and disadvantages of the jury system

Several criticisms have been made of the jury system. One is that jury
service can seriously disrupt jurors’ lives, particularly if the juror has a
job and the trial lasts for several weeks or even months.

Another major criticism is that in complex cases such as serious fraud,

members of a jury may not be the best people to decide guilt or
innocence. There is a strong argument that because a judge is trained in
the law and has gained experience in adjudicating court cases, then he
or she is in a much better position to make a verdict than a group of
non-experts, some of whom may have a limited education or little
knowledge of legal matters.

There is also the question of costs: a long trial involving 12 jury

members regularly attending court ends up being very expensive for
the state. The jury system could be seen as a luxury that we can no
longer afford.

On the other hand, 95 per cent of criminal cases are heard in

magistrates courts without a jury, so trials by jury only represent a
small minority of cases. More importantly, the fact that jury members
are selected at random is a guarantee of democracy: random selection
ensures a representative cross-section of society in terms of age, gender
and ethnic background. Indeed, it is widely held that jury verdicts
strengthen democracies, which is why South Korea and Japan have
started to use them. In this respect the jury system is something of
value. Moreover, 12 people working together may often be in a better

6
position to give a verdict than one person working alone. Every
individual – judges included – has prejudices and preferences.

It may also be easier for a defendant and for the public to accept
the verdict of their peers rather than that of a judge who is often seen as
being very dissimilar from the ‘average person’.

Finally, it could be argued that because the jury system has

survived for 800 years, evidently it must work. But others might argue
that now is time for a change.