30 November 2021

Enes Akin

INTRODUCTION TO LAW
Lecture 5: Civil procedure and criminal procedure
Program for today

• Discussion

• Civil Procedure

• Criminal Procedure
Discussion

• New king of Wakanda decided to redesign its legal system

• Which legal tradition should Wakanda adopt to achieve fairness

and justice?

• Why?

• Criteria: Judges, jury, accessibility of justice, democracy, legal

certainty, design of the judicial system
 Model of judge

• Common law  judge elected, may have little to no judicial

experience, inherent equitable powers

• Common law  career-judges rising from the judicial hierarchy,

only apply the law (no room for emotions, preferences, etc.),
young judges, no inherent equitable powers
 Jury

• Common law  random strangers decide on

the facts, no legal training, cannot be
overturned in the appeal

• Civil law  evidence assessed by the judge

who is a legal expert, decisions of the judge can
be overturned in the appeal
Accessibility of justice

• Common law  accusatorial trial, judge impartial referee,

parties responsible to prove their case, lawyers are vital, codes
may be scattered

• Civil law  inquisitorial trial, judge seeker of the truth, lawyers

are not as vital, fact-finding or expert opinions handled by the
judge (costs), codes written in simple and logical manner
everyone can understand
Legal certainty

• Common law  certainty not as strong, balanced by flexibility,

can be seen as ‘fluid’, stare decisis

• Civil law  strong focus on certainty, easier to change (new law

precedes)
Democracy

• Common law  law created by judge, democratic element is the

jury

• Civil law  law created by the legislator who are elected officials
Design of the judicial system

• Common law  general courts

• Civil law  specialized courts (separation of powers)

Civil procedure (civil law)

Preliminary Evidence- Rendering

stage taking stage decision

Hearing judge Hearing judge Deciding judge

Civil procedure

• Common law  immediate, oral, and rapid examination, jury

• Civil law  A series of isolated meetings and written

communication, questions determined and asked by the judge
(inquisitorial), no cross-examination, written record determines
the scope of facts, observations of the judge not relevant
Criminal procedure

• Substantive criminal law not very different in both traditions

• Procedural differences exist

Criminal procedure (civil law tradition)

Investigation Examination
Trial stage
stage stage

Public prosecutor Examining judge Trial judge

Criminal procedure compared

• Common law  defendants don’t have to take the stand and

this may not have consequences in the outcome of the case

• Civil law  defendants can be questioned, they may refuse to

answer or remain silent, but it may affect the outcome of the
case

• Criminal Procedure