7 ms·

Comparison of British, American and French Systems of Justice

52 points by vincent_s 10y ago

advisedwang 10y ago
Realistically don't most western countries have a hybrid? In common law countries virtually everything (criminal) as been defined by statute and hardly anything is at common law. And in civil law countries judges still heavily rely on precedent to aid in interpreting law.
- arethuza 10y ago
  Scots law is often described as a hybrid of civil and common law: https://en.wikipedia.org/wiki/Scots_law https://en.wikipedia.org/wiki/Scots_law
- paganel 10y ago
  > And in civil law countries judges still heavily rely on precedent to aid in interpreting law. The US and the UK are different in one other aspect compared to most Continental countries, more exactly in the fact that they had had a "democratic" and fair judicial system for at least the last 200 years, so there's plenty of cases from which to create "fair" precedents. For comparison, my country (in Eastern Europe) has been a Communist dictatorship for 50 years, and it would be a little strange to judge a present complaint based on cases judged in the past by communist-controlled judges. The same goes for countries like Italy (which had Mussolini and the fascists rule them for 20+ years), Germany (the Nazis), Spain (Franco), Portugal (Salazar) and so on. Plus, in this discussion I'm more on Thomas Paine's side against Burke's, the past has no intrinsic "value" stored in itself, the common law comes from the "dark ages". I know Napoleon is still pretty much hated in the Anglo-Saxon world, but in imposing his judicial code he was on the more enlightened side of things.
  - Kristine1975 10y ago
    >Germany (the Nazis) IIRC this actually happened, albeit on an individual basis: When prosecuting communists in the 50s and 60s in Western Germany, some judges considered the defendant to be a repeat-offender if they had been convicted of being a communist in the Third Reich. Yes, the judges were former Nazis. Edit: Source (German, I'm afraid): http://www.heise.de/tp/artikel/14/14361/1.html http://www.heise.de/tp/artikel/14/14361/1.html
    - pluma 10y ago
      To be fair, while Nazi Germany wasn't exactly democratic and there was a lot of politics in how laws were applied, being a communist activist was illegal both under Nazi German law as well as under West German law (in the 50s and 60s anyway). The reasoning was less that someone had been convicted "earlier in this country" but that they had been convicted before at all, indicating they've literally done the same thing before and gotten punished for it. If you buy into the logic that repeat offences constitute a more severe crime, it's sensible to take prior offences into account even if they were persecuted under a different jurisdiction. Of course the idea that "resistance against the state" under the Nazi regime could serve as a prior offence seems ludicrous but let's not pretend the persecution of communists during the Cold War was fairer than the persecution of political undesirables before (though the punishment was obviously different).
      - Kristine1975 10y ago
        >If you buy into the logic that repeat offences constitute a more severe crime, it's sensible to take prior offences into account even if they were persecuted under a different jurisdiction. But Nazi Germany wasn't a state under the rule of law, so it's questionable whether someone convicted by one of its courts was really guilty of the crime they were accused of. I.e. the different jurisdiction wasn't trustworthy, so its verdict should have been ignored.
jkot 10y ago
I think main difference is that some people get more sympathy from jury and better chances to get away with crime. In continental law judge tends to be more fair. For example black receive higher sentences for drug related crimes. Women commits 30% of all murders but are 10 times less likely to be convicted. Also in continental law sentences are shorter and more reasonable; 8 years for murder etc. EDIT: we actually have sentences for murder 10 years to lifetime. It depends on case.
- hnamazon123 10y ago
  > Also in continental law sentences are shorter and more reasonable; 8 years for murder etc. This may be the most European thing I've ever read.
  - mysterypie 10y ago
    Before laughing too much at the European idea of justice, think of the absurd sentencing that regularly happens in the US: A "60 Minutes" story some years ago reported that a California man was sentenced to life in prison for shoplifting two double-A batteries. Yes, life for a pack of AA batteries. He was a twice convicted felon who had already served his time but got mandatory life for a third crime, even a misdemeanor like shoplifting, under California's three strikes law.
    - dragonwriter 10y ago
      > Before laughing too much at the European idea of justice, think of the absurd sentencing that regularly happens in the US: A "60 Minutes" story some years ago reported that a California man was sentenced to life in prison for shoplifting two double-A batteries. Note that this is not something that "regularly happens in the US", it seems to be an illustration of a failure mode of California's particular implementation of a "three strikes" law under Prop 184 of 1994, which was abnormally severe (not requiring the third felony strike to be "serious or violent", as most three-strikes laws in the US do) -- and it seems to be a seriously misremembered one, at that, since even when this version of three strikes existed in CA, it still required the third strike to be a felony. Also, this rule was changed to align CA's three strikes implementation with the common rule requiring the third strike to be a "serious or violent" felony in by Prop 36 in 2012 (which also provided a process for after-the-fact sentence adjustment for those sentenced under the old version for a third strike that would not have been subject to the enhanced sentence under the reformed version of the three strikes.)
mysterypie 10y ago
> Common law: some of the laws are based on customs, which means that things are against the law and can be punished because they have been punished by judges in the past. Can anyone give an example of this?
- pjc50 10y ago
  https://en.m.wikipedia.org/wiki/English_criminal_law#Common_law_offences https://en.m.wikipedia.org/wiki/English_criminal_law#Common_... Most common law was codified and modernised in the latter half of the 20th century.
- a_humean 10y ago
  US and UK courts help develop the law through the precedents they set in their judgements. Law is not just a product of the legislative process and statute, but also of case law developed by judges. Common law often leaves a lot of the details of implementation to judges, and judges are also left to interpret and establish the law when an unforeseen case comes to their court that the legislative process did not deliberate over. If a higher court establishes a precedent for punishment then a lower court might cite that precedent as part of their legal reasoning of why they are bound to a particular punishment, and an appeal can be made against that judge if it is found they don't follow precedent. If you read a formal judgement you will usually find references to case law created by previous judges scattered throughout a judge's argument. Edit: As an example maybe look at the recent popular case of Oscar Pistorius in South Africa in which a major contention has been the interpretation of case law by the judge to decide the appropriate category (murder vs manslaughter) and punishment for the killing of Reeva Steenkamp.
  - mysterypie 10y ago
    But is there an actual modern-day example? Like, someone was punished for picking strawberries out of season because it's against common law even though there is no legislative law. It's sounds to me like this situation no longer arises -- everything has been written down as a law.
    - 10y ago
hnamazon123 10y ago
So a twice convicted felon couldn't not commit another crime (theft, no less)? Well by all means the enlightened thing to do would be to allow him to keep victimizing people.
- Balero 10y ago
  Its a pack of fucking batteries mate. You've just ruined a guys life, the life of his family and friends because of a pack of batteries. The enlightened thing to do would be to help him re-integrate into society so that he didn't need to steal a pack of batteries, help him get a job, go to counselling etc. By all means give the guy a fine, or tag him. Treat him like the child he's acting like. But life in prison for a pack of batteries is a bit much.
  - hnamazon123 10y ago
    A stolen pack of batteries and 2 felonies. Yeah tag the guy and keep letting him steal from people, sometimes he'll get caught, sometimes he won't. That's a great society to live in.
    - celticninja 10y ago
      Tagging is not rehabilitation. Rehabilitation is education, training etc, both of which cost far less than imprisonment but your private prison companies are lobbying hard for harsher prison terms and that lobbying evidently works on you.
      - hnamazon123 10y ago
        Please keep that crap in Europe. They're currently reaping the benefits of that particular world view.
        celticninja 10y ago
        What benefits are they reaping?
silentOpen 10y ago
The 14th amendment does not guarantee privacy so I'm not sure why I'd believe anything else this page says...
- tzs 10y ago
  The Supreme Court disagrees with you. See Griswold v. Connecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410 U.S. 113 (1973).
sandworm101 10y ago
Be warned, this article has only a passing understanding of "system[s] of common law". The odd phraseology I put down to translation, but some of the specific statements are just wrong. I would say this is a wikipedia-level understanding of how systems of legal authority work. For instance, in common law countries (ie those taking their traditions from the Brits) judges are not in fact obligated to follow rules of precedent. That's the sort of thing that a textbook might say, but the reality is that judges regularly bypass or ignore previous rulings on similar matters. Similarly, in Civil law jurisdictions (those that take traditions from the French) judges regularly rely on past rulings by respected judges. The process may not be formalized, but to say that judges no not regard previous decisions on similar matters is disingenuous. They write. They read each other;s work. They learn and share in much the same way as common law jurisdictions. Speaking as someone working in common law jurisdictions, I'd say that the primary motivation for a judge to follow a previous ruling by a higher court is not some rule of precedent. Imho they are motivated by the likelihood of their ruling being turned on appeal. That gives them much more room in which to act. That is judicial discretion. That power is why we must respect judges and why they in turn must work to deserve our respect.
- Kell 10y ago
  > Similarly, in Civil law jurisdictions (those that take traditions from the French) judges regularly rely on past rulings by respected judges. You are indeed correct in most of your comment. But in France while it's true that judges read decisions by other judges, they will never ever quote another judge (except the ECHR). If for instance the Court de cassation (One of the French three (or four, or five, depends on how you count them) Supreme Courts) has said that "X has to be interpreted as Y". Lower judges will start using the sentence directly lifted from the Court de cassation decision "X should be interpreted as Y", but without quotation marks or any sort of attribution. It's a fiction that the judge came up with this interpretation by himself. Sometimes the judge will use some sort of caveat like "Il est constant que" ("It is always the case that") which is a way of saying that he is looking at precedent, without saying it explicitly. If a judge did quote directly the Court de cassation with attribution, his decision could be appealed and be overthrown by the Court de cassation itself. And if a judge disagrees with our Supreme Court, he will oftentimes without any hesitation "enter in resistance" (issuing decisions that go against the Court de cassation interpretation), the idea is that this is the way judges try to get the Supreme Court to change its opinion. This is also possible because he have more or less 90 judges in the Court de cassation, and turnover is quite high, so if a decision was only one or two votes in a direction (which no one knows because the votes are secret and the ratio of yays and nays also is secret), in a year, a judge or two at the court may change and the position could change. My conclusion would be that in France we do respect precedent most of the time... but only if the judge agree with it. Our judges have a natural inclination to ignore precedent. Meanwhile in Common law countries, there is a natural inclination ot respect it... but sometimes judges disagree. Caveat : In France, decisions by the Constitutional Council (the "Higher" Supreme Court... the Court of cassation would disagree on the "Higher" part) do create binding precedent... because those decision can change directly the text of the law. If the Council says that a sentence in a law is unconstitutional. Then the sentence is stripped out of the Code itself. Lower judges cannot therefore ignore it.
nihonde 10y ago
The differences between Civil and Common law systems really fall apart under close scrutiny. It's almost purely semantic.

52 points by vincent_s 10y ago

Realistically don't most western countries have a hybrid? In common law countries virtually everything (criminal) as been defined by statute and hardly anything is at common law. And in civil law countries judges still heavily rely on precedent to aid in interpreting law.

arethuza 10y ago
Scots law is often described as a hybrid of civil and common law: https://en.wikipedia.org/wiki/Scots_law https://en.wikipedia.org/wiki/Scots_law
paganel 10y ago
> And in civil law countries judges still heavily rely on precedent to aid in interpreting law. The US and the UK are different in one other aspect compared to most Continental countries, more exactly in the fact that they had had a "democratic" and fair judicial system for at least the last 200 years, so there's plenty of cases from which to create "fair" precedents. For comparison, my country (in Eastern Europe) has been a Communist dictatorship for 50 years, and it would be a little strange to judge a present complaint based on cases judged in the past by communist-controlled judges. The same goes for countries like Italy (which had Mussolini and the fascists rule them for 20+ years), Germany (the Nazis), Spain (Franco), Portugal (Salazar) and so on. Plus, in this discussion I'm more on Thomas Paine's side against Burke's, the past has no intrinsic "value" stored in itself, the common law comes from the "dark ages". I know Napoleon is still pretty much hated in the Anglo-Saxon world, but in imposing his judicial code he was on the more enlightened side of things.
- Kristine1975 10y ago
  >Germany (the Nazis) IIRC this actually happened, albeit on an individual basis: When prosecuting communists in the 50s and 60s in Western Germany, some judges considered the defendant to be a repeat-offender if they had been convicted of being a communist in the Third Reich. Yes, the judges were former Nazis. Edit: Source (German, I'm afraid): http://www.heise.de/tp/artikel/14/14361/1.html http://www.heise.de/tp/artikel/14/14361/1.html
  - pluma 10y ago
    To be fair, while Nazi Germany wasn't exactly democratic and there was a lot of politics in how laws were applied, being a communist activist was illegal both under Nazi German law as well as under West German law (in the 50s and 60s anyway). The reasoning was less that someone had been convicted "earlier in this country" but that they had been convicted before at all, indicating they've literally done the same thing before and gotten punished for it. If you buy into the logic that repeat offences constitute a more severe crime, it's sensible to take prior offences into account even if they were persecuted under a different jurisdiction. Of course the idea that "resistance against the state" under the Nazi regime could serve as a prior offence seems ludicrous but let's not pretend the persecution of communists during the Cold War was fairer than the persecution of political undesirables before (though the punishment was obviously different).
    - Kristine1975 10y ago
      >If you buy into the logic that repeat offences constitute a more severe crime, it's sensible to take prior offences into account even if they were persecuted under a different jurisdiction. But Nazi Germany wasn't a state under the rule of law, so it's questionable whether someone convicted by one of its courts was really guilty of the crime they were accused of. I.e. the different jurisdiction wasn't trustworthy, so its verdict should have been ignored.

jkot 10y ago

I think main difference is that some people get more sympathy from jury and better chances to get away with crime. In continental law judge tends to be more fair. For example black receive higher sentences for drug related crimes. Women commits 30% of all murders but are 10 times less likely to be convicted. Also in continental law sentences are shorter and more reasonable; 8 years for murder etc. EDIT: we actually have sentences for murder 10 years to lifetime. It depends on case.

hnamazon123 10y ago
> Also in continental law sentences are shorter and more reasonable; 8 years for murder etc. This may be the most European thing I've ever read.
- mysterypie 10y ago
  Before laughing too much at the European idea of justice, think of the absurd sentencing that regularly happens in the US: A "60 Minutes" story some years ago reported that a California man was sentenced to life in prison for shoplifting two double-A batteries. Yes, life for a pack of AA batteries. He was a twice convicted felon who had already served his time but got mandatory life for a third crime, even a misdemeanor like shoplifting, under California's three strikes law.
  - dragonwriter 10y ago
    > Before laughing too much at the European idea of justice, think of the absurd sentencing that regularly happens in the US: A "60 Minutes" story some years ago reported that a California man was sentenced to life in prison for shoplifting two double-A batteries. Note that this is not something that "regularly happens in the US", it seems to be an illustration of a failure mode of California's particular implementation of a "three strikes" law under Prop 184 of 1994, which was abnormally severe (not requiring the third felony strike to be "serious or violent", as most three-strikes laws in the US do) -- and it seems to be a seriously misremembered one, at that, since even when this version of three strikes existed in CA, it still required the third strike to be a felony. Also, this rule was changed to align CA's three strikes implementation with the common rule requiring the third strike to be a "serious or violent" felony in by Prop 36 in 2012 (which also provided a process for after-the-fact sentence adjustment for those sentenced under the old version for a third strike that would not have been subject to the enhanced sentence under the reformed version of the three strikes.)

mysterypie 10y ago

> Common law: some of the laws are based on customs, which means that things are against the law and can be punished because they have been punished by judges in the past. Can anyone give an example of this?

pjc50 10y ago
https://en.m.wikipedia.org/wiki/English_criminal_law#Common_law_offences https://en.m.wikipedia.org/wiki/English_criminal_law#Common_... Most common law was codified and modernised in the latter half of the 20th century.
a_humean 10y ago
US and UK courts help develop the law through the precedents they set in their judgements. Law is not just a product of the legislative process and statute, but also of case law developed by judges. Common law often leaves a lot of the details of implementation to judges, and judges are also left to interpret and establish the law when an unforeseen case comes to their court that the legislative process did not deliberate over. If a higher court establishes a precedent for punishment then a lower court might cite that precedent as part of their legal reasoning of why they are bound to a particular punishment, and an appeal can be made against that judge if it is found they don't follow precedent. If you read a formal judgement you will usually find references to case law created by previous judges scattered throughout a judge's argument. Edit: As an example maybe look at the recent popular case of Oscar Pistorius in South Africa in which a major contention has been the interpretation of case law by the judge to decide the appropriate category (murder vs manslaughter) and punishment for the killing of Reeva Steenkamp.
- mysterypie 10y ago
  But is there an actual modern-day example? Like, someone was punished for picking strawberries out of season because it's against common law even though there is no legislative law. It's sounds to me like this situation no longer arises -- everything has been written down as a law.
  - 10y ago

hnamazon123 10y ago

So a twice convicted felon couldn't not commit another crime (theft, no less)? Well by all means the enlightened thing to do would be to allow him to keep victimizing people.

Balero 10y ago
Its a pack of fucking batteries mate. You've just ruined a guys life, the life of his family and friends because of a pack of batteries. The enlightened thing to do would be to help him re-integrate into society so that he didn't need to steal a pack of batteries, help him get a job, go to counselling etc. By all means give the guy a fine, or tag him. Treat him like the child he's acting like. But life in prison for a pack of batteries is a bit much.
- hnamazon123 10y ago
  A stolen pack of batteries and 2 felonies. Yeah tag the guy and keep letting him steal from people, sometimes he'll get caught, sometimes he won't. That's a great society to live in.
  - celticninja 10y ago
    Tagging is not rehabilitation. Rehabilitation is education, training etc, both of which cost far less than imprisonment but your private prison companies are lobbying hard for harsher prison terms and that lobbying evidently works on you.
    - hnamazon123 10y ago
      Please keep that crap in Europe. They're currently reaping the benefits of that particular world view.
      - celticninja 10y ago
        What benefits are they reaping?

silentOpen 10y ago

The 14th amendment does not guarantee privacy so I'm not sure why I'd believe anything else this page says...

tzs 10y ago
The Supreme Court disagrees with you. See Griswold v. Connecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410 U.S. 113 (1973).

sandworm101 10y ago

Be warned, this article has only a passing understanding of "system[s] of common law". The odd phraseology I put down to translation, but some of the specific statements are just wrong. I would say this is a wikipedia-level understanding of how systems of legal authority work. For instance, in common law countries (ie those taking their traditions from the Brits) judges are not in fact obligated to follow rules of precedent. That's the sort of thing that a textbook might say, but the reality is that judges regularly bypass or ignore previous rulings on similar matters. Similarly, in Civil law jurisdictions (those that take traditions from the French) judges regularly rely on past rulings by respected judges. The process may not be formalized, but to say that judges no not regard previous decisions on similar matters is disingenuous. They write. They read each other;s work. They learn and share in much the same way as common law jurisdictions. Speaking as someone working in common law jurisdictions, I'd say that the primary motivation for a judge to follow a previous ruling by a higher court is not some rule of precedent. Imho they are motivated by the likelihood of their ruling being turned on appeal. That gives them much more room in which to act. That is judicial discretion. That power is why we must respect judges and why they in turn must work to deserve our respect.

Kell 10y ago
> Similarly, in Civil law jurisdictions (those that take traditions from the French) judges regularly rely on past rulings by respected judges. You are indeed correct in most of your comment. But in France while it's true that judges read decisions by other judges, they will never ever quote another judge (except the ECHR). If for instance the Court de cassation (One of the French three (or four, or five, depends on how you count them) Supreme Courts) has said that "X has to be interpreted as Y". Lower judges will start using the sentence directly lifted from the Court de cassation decision "X should be interpreted as Y", but without quotation marks or any sort of attribution. It's a fiction that the judge came up with this interpretation by himself. Sometimes the judge will use some sort of caveat like "Il est constant que" ("It is always the case that") which is a way of saying that he is looking at precedent, without saying it explicitly. If a judge did quote directly the Court de cassation with attribution, his decision could be appealed and be overthrown by the Court de cassation itself. And if a judge disagrees with our Supreme Court, he will oftentimes without any hesitation "enter in resistance" (issuing decisions that go against the Court de cassation interpretation), the idea is that this is the way judges try to get the Supreme Court to change its opinion. This is also possible because he have more or less 90 judges in the Court de cassation, and turnover is quite high, so if a decision was only one or two votes in a direction (which no one knows because the votes are secret and the ratio of yays and nays also is secret), in a year, a judge or two at the court may change and the position could change. My conclusion would be that in France we do respect precedent most of the time... but only if the judge agree with it. Our judges have a natural inclination to ignore precedent. Meanwhile in Common law countries, there is a natural inclination ot respect it... but sometimes judges disagree. Caveat : In France, decisions by the Constitutional Council (the "Higher" Supreme Court... the Court of cassation would disagree on the "Higher" part) do create binding precedent... because those decision can change directly the text of the law. If the Council says that a sentence in a law is unconstitutional. Then the sentence is stripped out of the Code itself. Lower judges cannot therefore ignore it.

nihonde 10y ago

The differences between Civil and Common law systems really fall apart under close scrutiny. It's almost purely semantic.