Give your own brief definition of a “law” and describe some of the differences between civil law and common law.

Question

What will be an ideal response?

Answer 1

Law is a written body of rules of conduct applicable to all members of a defined community, society, or
culture that emanate from a governing authority and are enforced by its agents by the imposition of
penalties for their violation. Civil law is written rather than unwritten: As opposed to the common law’s
slow accumulation of case law derived from decisions based on local customs, the Napoleonic Code and
its successors are all codes of conduct (statutes) written from above and imposed on citizens and
subjects below.
In civil law precedent is not officially recognized. The codes laid down in civil law are complete
the day they are enacted and are not subject to judicial review. As such, there is no need to refer to past
cases for guidance. In practice, however, no code is so complete as to provide unambiguous guidance in
all matters coming before the courts, and civil law judges often refer to case law and thus to precedent.
The main difference between the common and civil law approaches is that in civil law, precedent is not
binding.
Civil law is also inquisitorial rather than adversarial: This is the primary distinguishing feature of
civil law vis-à-vis common law. The inquisitorial system is a system of extensive investigation and
interrogations carried out to ensure that an innocent person is not subjected to trial. The term inquisition
should be thought of as denoting “inquiry” as the term adversarial denotes “contest.” The inquisitorial
focus is on truth and not so much on procedure, so many of the procedural protections afforded suspects
in common-law countries either do not exist or exist in modified form.

Civil law has traditionally made little use of juries: There is some use of juries in civil law
countries in very serious criminal cases, but they don’t have the same role that they have in common-law
countries. Juries consist of three professional judges and nine laypersons. In a jury trial, all jurors and
judges are allowed to question witnesses and the accused. Jury deliberations are doubtless dominated
by the professional judges on whom the laypersons must rely for explanations of law, but guilt or
innocence is determined by a secret ballot in which each of the 12 votes are of equal importance. A
verdict requires agreement of at least 8 of the 12 jurors rather than unanimity.

Judicial review is used sparingly in civil law: The French equivalent of the American Supreme
Court in terms of dealing with constitutional issues is the Conseil Constitutionnel (Constitutional Council).
This entity is unique among national supreme courts in that it lies outside the judicial system (it is a
council, not a court hearing cases forwarded to it from lower courts). The council’s main function is to rule
on the constitutionality of proposed legislation, not legislation already in effect, when requested to do so
by leaders of the various political parties. Some civil law countries tend to view the practice of judicial
review of legislation as inherently antidemocratic and a violation of the separation of powers principle.
The reason that the American model of judicial review is rejected in France is that the French believe
that important decisions affecting large numbers of people should be made by legislators elected by and
accountable to the voters, not by appointees with lifetime tenure.