
Comparison of British, American and French Systems of Justice - vincent_s
http://ecpmlangues.u-strasbg.fr/civilization/justice-systems-us-uk-france-comparison.html
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sandworm101
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
> 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.

------
jkot
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.

~~~
Artoemius
I don't think 8 years for murder is reasonable. Within a lifespan of 80 years,
someone could kill about 10 people. That doesn't seem reasonable to me.

~~~
Hockenbrizzle
This can't be the correct way of thinking of the prison system. A person
should not be sent to prison for the sole purpose of suffering for the crime
which they committed. There is a reason people call a prison a correctional
facility. The point is to correct the problems in their character that caused
them to commit such a crime. If you isolate them from the world it's no wonder
they would eventually commit a crime again. Because they have no idea how to
fit into society. And then we just have another person to take care of while
they don't do anything to contribute to society.

~~~
Snargorf
By this logic, I can just murder anyone I like, and then demonstrate that I
won't do it again.

After that, no reason to keep me in prison any more right? It's not like the
dead person or their family count for anything - it's all about me and the
government's budget. Yeah?

~~~
pluma
Serious question: what the fuck is wrong with you? This Puritan "let's murder
and torture people for their sins" approach is not working. Criminals are
humans.

Yes, it's not about the dead person. They're dead.

It's also not about the family of the dead person. They've already been
harmed.

It's not about you, it's about preventing future crimes. If you've been turned
into a productive member of society, great -- everyone's off better now. If
you haven't, the system has failed society (not just you).

Heck, there's a good chance prison isn't even the best solution for you
personally. Most likely you need actual counselling or you're facing social
problems. Containment is the last resort.

You don't fix bugs by hiding them -- you fix them by figuring out why they
happened in the first place and determining how to decrease the likelihood of
them happening again.

EDIT: In response to the killed throwaway: if you kill someone "in the heat of
the moment" and it's not self-defence or anything else we consider acceptable,
of course there's still a problem in need of fixing: self control. If you kill
a man because he sleeps with your wife, no matter how betrayed you might feel,
it's still a problem with how you act on those feelings. But this is only
visible if you stop thinking "what is an appropriate punishment" and start
thinking "why did this happen" and "what could have prevented it".

------
advisedwang
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.

~~~
paganel
> 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
_> 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
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
_> 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.

------
mysterypie
> 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?

~~~
a_humean
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
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.

~~~
a_humean
New precedents are created all the time. Just look at the US supreme court
which is a court with the primary responsibility of establishing case law
precedents when lower courts disagree on statue and case law. They recently
legalised gay marriage (I'd say good outcome based on bad reasoning, but
whatever) and made it impossible for the US states and their courts from
blocking gay marriage due to the precedent set as the highest court. Lower
courts can now prosecute against states and officials that try to block it.
The only thing that could override that ruling at this point is a
constitutional amendment.

I don't think we get many courts creating laws on picking strawberries out of
season though. There would need to be an existing legal context in which
strawberries picking out of season is an edge case that can be decided by case
law.

~~~
mysterypie
Aha, so that's an actual modern-day example? An official who tries to prevent
a gay marriage can be punished under common law even though there is no
legislated law against officials trying to prevent gay marriage.

~~~
a_humean
Yes, there is no explicit statute that says that an official can be punished
for preventing gay marriage, but new case law would make this an offence and a
lower court might need to establish further new case law to decide what an
appropriate punishment might be for the official or state that does try to
block it within the legal context of similar violations of law both in statute
and case law. Basically they would get fired for not performing their duties
as an official.

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

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

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

