# Judicial systems throughout Europe



## ed800uk

How different are attitudes to  judicial systems?  I read on a (probably) right-wing UK board about how differences between various -- inferior, obviously ;-) -- non-UK judiciaries made the UK's integration into Europe disadvantageous.

I'm not a lawyer -- or a criminal -- so I know little enough of our own system:  even less of any other nation's.  Is anyone knowlegable enough to tell a little about the differences?
Ed


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## maxiogee

The Irish use the system they inherited from the British. It does clash with the usual practice on the continent. They tend to use a system based on the Napoleonic Code, whereas the UK and Ireland use an adversarial system much like one sees  in Hollywood portrayals of the American legal system.


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## ed800uk

Here's an extract from the post I referred to:



> None of their systems of justice include our legal safeguards of freedom such as Habeas Corpus and trial by independent Jury.
> 
> Everyone’s personal freedom on the mainland is in the hands of an all-powerful career judiciary (a body that is alien to our traditions), who include prosecutors and judges, but exclude defenders.
> 
> People are put in prison on mere suspicion, with no evidence shown, and there they may rot for months and longer while the prosecutors try to build a case against them.
> 
> Then they are tried by judges who are colleagues of the prosecutor, not by an independent jury of their peers.
> Moderator Note: Some text deleted to bring this quotation into compliance with Forum rules for copyrighted materials.


There is no indication as to which country is being discussed -- just "on the mainland" -- that excludes Ireland, then ;-).

Anyone recognise any vestige of truth in this description, or is it just the ignorant nonsense that it sounds?


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## Blackleaf

ed800uk said:


> How different are attitudes to judicial systems? I read on a (probably) right-wing UK board about how differences between various -- inferior, obviously ;-) -- non-UK judiciaries made the UK's integration into Europe disadvantageous.
> 
> I'm not a lawyer -- or a criminal -- so I know little enough of our own system: even less of other nation's. Is anyone knowlegable enough to tell a little about the differences?
> Ed


 
Deep down inside, you know that Britain's judicial system is much more democratic than the rest of Europe's. We're innocent until proven guilty. Whereas the rest of Europe are guilty until proven innocent - thanks to the French Napoleonic system.

And that's why Britain needs to leave the EU, or else we'd have to adopt the Continental European model of justice. That means guilty until proven innocent; no trial by jury; no habeas corpus.


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## ireney

Funny! I was SO certain that in my country which is in mainland Europe it goes without saying that you are innocent until proven guilty! AND that criminal cases are judged by a jury (well,there's a judge there too ) ! I even thought we have the equivalent of "habeas corpus" and that I  recently read about someone who filled a whatyoumaycallit about habeas corpus (can't remember if it was accepted or not).

Dear me! I must be living in the UK all the while and I just didn't know it. Thank whomever I haven't had a car-accident driving the wrong way around all this time


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## maxiogee

Blackleaf said:


> Deep down inside, you know that Britain's judicial system is much more democratic than the rest of Europe's. We're innocent until proven guilty. Whereas the rest of Europe are guilty until proven innocent - thanks to the French Napoleonic system.



I don't think judicial systems need to be democratic, they need to be "working" — and I think a lot of people could cite a lot of cases to show that the British justice system doesn't work as well as many people would like to think.

Were the Napoleonic System so terribly dreadful do you not think the populations who labour under it would have revolted by now? They seem terribly complaisant and complicit in their own downtroddenness. How remiss of them. I think that, while there are flaws on each side of La Manche, one hears of few "Birmingham Six" or "Guildford Four" type cases from France or Spain.

The quote about…
Then they are tried by judges who are colleagues of the prosecutor, not by an independent jury of their peers.​… seems to overlook the fact that Judges in the UK (and in Ireland) are invariably drawn from the ranks of barristers - colleagues of the prosecutors and defenders. The accused in Britain are not tried by the jury, they are tried by a judge - before a jury of their peers (at present, and with moves away from that regularly mooted and bound to come). Judges rule the proceedings.


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## Blackleaf

> … seems to overlook the fact that Judges in the UK (and in Ireland) are invariably drawn from the ranks of barristers - colleagues of the prosecutors and defenders. The accused in Britain are not tried by the jury, they are tried by a judge - before a jury of their peers (at present, and with moves away from that regularly mooted and bound to come). Judges rule the proceedings.


 
The accused in Britain are tried by the jury. The jury of their peers. It is the jury of 12 similar people to them who find them innocent or guilty. All the judge does is tell the person who is found guilty what punishment they will have.  The judge does NOT declare a British person innocent or guilty.  The people who declare a British person innocent or guilty are fellow British members of the public who are taken into court as the jury.  That's about as democratic as you can get it.

Britain must keep the Anglo-Saxon method of law and needs to avoid having the EU impose the Napoleonic Law code on it.


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## Outsider

I wouldn't want to be tried by a jury of my peers. I'm far too ignorant and inexperienced of legal matters, and I'm guessing that so are most of my peers.

Still, if you ever wish to be tried by a jury around here, that's perfectly legal. I'll even promise to volunteer.


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## maxiogee

Blackleaf said:


> The accused in Britain are tried by the jury. The jury of their peers. It is the jury of 12 similar people to them who find them innocent or guilty. All the judge does is tell the person who is found guilty what punishment they will have.  The judge does NOT declare a British person innocent or guilty.  The people who declare a British person innocent or guilty are fellow British members of the public who are taken into court as the jury.  That's about as democratic as you can get it.



No it's not. Have you ever witnessed a jury selection? Ever seen who don't turn up when summoned, or who plead pressing engagements elsewhere which prevent their serving?

Have you ever been in a court? What does the average citizen know about the law? I've served on a jury, I speak from experience.
On the occasions when a jury gives a perverse decision, the judge can overrule them and require a retrial, or the prosecution can appeal to, and will usually win a hearing in, a higher court. Ultimately the case can go to a non-jury appeal to the House of Lords (or, in Ireland, the Supreme Court).

In the common law system, when there is a jury trial, the jury generally decides questions of fact (guilt or innocence, whether a party was negligent, what the amount of damages should be, etc.) while a judge decides questions of law (one of the judge's most important power is to craft jury instruction).


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## ed800uk

I've been asking a few people how our (UK) judges get their jobs.  So far, I've had only "don't knows".

One person said she wasn't sure, but thought that the system might be different in Scotland.


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## waspsmakejam

Strange at it may seem, there's no such thing as a UK judge.  There is a  seperate judiciarys, courts systems and law for England and Wales, and different ones for Northern Ireland and for Scotland.  

In England and Wales we have a common law legal system.  Northern Ireland has a seperate judiciary, courts and legislation but the legal system is the same, so a lawyer trained in English law could practice in Northern Ireland.

But Scotland has a "mixed" system of its own based on both common and civil law.  A person qualified to practice English law cannot practice law in Scotland.


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## ed800uk

I make no excuse for my countrymen in this matter.  In any case, I don't know anything about it myself.  But I'm a bit surprised that so far I've asked about 12 people and not one has a confident answer about how our judges get their jobs.

Embarrassed by my own ignorance, I've been reading some Wikipedia articles.  No success so far.


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## maxiogee

ed800uk said:


> I make no excuse for my countrymen in this matter.  In any case, I don't know anything about it myself.  But I'm a bit surprised that so far I've asked about 12 people and not one has a confident answer about how our judges get their jobs.
> 
> Embarrassed by my own ignorance, I've been reading some Wikipedia articles.  No success so far.



Try here or here. Not Wikipedia, but maybe better.


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## ampurdan

Well, we the citizens of the democratic countries with a system of civil law are also granted the right to be innocent until proved guilty, the habeas corpus and, lately, a jury in the criminal cases (although many people think like Outsider). These are not the great differences.

The main difference is that "common law" is based on the precedent system: a judged must judge according to similar cases judged in the past; while in the system of civil law must obey only the positive law (la Loi, la Ley). That's the basic idea, but in both cases there are many nuances.


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## stranger in your midst

The two main legal camps in the West are the Anglo-Saxon tradition of 'common' law, which is based on judicial precedent, and the Continental tradition of 'civil' law, which is based on a more academic methodolgy, e.g. codification.

The English, American and Australian legal systems follow the common law tradition, whereas most of Continntal Europe follows the civil law tradition.

Some countries, notably Scotland, have borrowed from both (although it is anachronistic to claim Scots law is based on Roman law).

Features of the Anglo-Saxon tradition include the concept of binding precedent, i.e. inferior courts are bound by the judgments of superior courts, and the notion of adversarial justice, i.e. both parties are equal before the judge, who is expected to sit back with little intervention.

On the contrary, the civil law tradition tends to prefer a more developmental jurisprudence, i.e. less binding precedent, and inquisitorial judges, with some systems deploying a judge-prosecutor.

However, in practice nowadays I believe most legal systems in the West are much more similar than they used to be, thanks to a greater sharing of learning and a mutual acceptance of common principles of justice.

In practice, judges often decide a case more or less on gut instinct, then attempt to justify it with reference to the law. A cynic would say they manipulate the law to suit their rational, moral, social or political outlook, rather than allowing the law to guide them to those decisions. I think this is probably true throughout the world.

In those countries ascribing to the European Convention on Human Rights, judicial appointment is by application, which is usually open to lawyers of several years' standing. In those countries which deploy non-legally qualified judges, e.g. magistrates or justices of the peace, any member of the public may apply to be appointed.


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## Blackleaf

maxiogee said:


> No it's not. Have you ever witnessed a jury selection? Ever seen who don't turn up when summoned, or who plead pressing engagements elsewhere which prevent their serving?
> 
> Have you ever been in a court? What does the average citizen know about the law? I've served on a jury, I speak from experience.
> On the occasions when a jury gives a perverse decision, the judge can overrule them and require a retrial, or the prosecution can appeal to, and will usually win a hearing in, a higher court. Ultimately the case can go to a non-jury appeal to the House of Lords (or, in Ireland, the Supreme Court).
> 
> In the common law system, when there is a jury trial, the jury generally decides questions of fact (guilt or innocence, whether a party was negligent, what the amount of damages should be, etc.) while a judge decides questions of law (one of the judge's most important power is to craft jury instruction).


 

I'd still rather have English Common Law that Continental Europe's Napoleonic Law and the Europeans and the Irish must be dreaming if they think they can impose Napoleonic Law on Britain. Britain has been a democracy for centuries whereas every major Continental European country - Germany, Spain, France and Italy - have been democracies for just a few decades. Just leave us British to run our own judicial system. Brussels should stop its interfering.


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## maxiogee

Blackleaf said:


> I'd still rather have English Common Law that Continental Europe's Napoleonic Law


Since you seem to know little about the English legal system I will refrain from asking you why you would rather one over the other.




Blackleaf said:


> the Europeans and the Irish must be dreaming if they think they can impose Napoleonic Law on Britain.


And your source for this desired imposition is… ?


Oh, and by the way


Blackleaf said:


> the Europeans and the Irish


I think you need to check up on things — we Irish _are_ Europeans! One doesn't say Britons and Londoners.


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## beclija

There are juries in this country in certain limited cases, but not as much as in the Anglosaxon system - and I think that's good so: A jury consists of laypeople who will as such be much more easily persuaded by a witty lawyer rather than objectively weighing the facts than any trained judge. Also, they will be easier influenced by biased media covering or public opinion. So, unless the specifics of the case at hand make it likely that the judge might be biased, I don't think having total idiots (including myself) in his/her place makes the whole affair any more fair or democratic.

And to the other claims: Officially you're innocent until proven guilty in any country I know of; there are cases - especially when a biased public opinion puts pressure on a jury or, less likely due to their professional experience, judge - where it remains dead paper. I haven't seen any statistics showing that this happens more often on the continent than in Britain (and would indeed guess the opposite based on what I've said about the downsides of juries, but unlike some I admit it is only a guess). Pretty sure Britain also has a possibility of putting people on remand - here it is only possible if someone is suspected of a very serious crime and it is deemed likely that he will commit something similar again and/or flee the court. The state is obliged to do repaiments if the person turns out to be falsely accused (although it often tries to get around it).


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## cirrus

Blackleaf said:


> Blackleaf said:
> 
> 
> 
> Britain must keep the Anglo-Saxon method of law and needs to avoid having the EU impose the Napoleonic Law code on it.
> 
> 
> 
> Sorry, what particular planet are you on?  This wouldn't happen to be the very same GB that has no written constitution by any chance?  Gay rights in the UK made a huge leap as a result of pressure from the EU. Civil partnerships were the minimum the government could get away with in terms of getting rid of institutional discrimation against gays.  Then again gays might not be anglo saxon then?
Click to expand...


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## Lombard Beige

stranger in your midst said:


> The two main legal camps in the West are the Anglo-Saxon tradition of 'common' law, which is based on judicial precedent, and the Continental tradition of 'civil' law, which is based on a more academic methodolgy, e.g. codification.
> 
> The English, American and Australian legal systems follow the common law tradition, whereas most of Continntal Europe follows the civil law tradition.
> 
> Some countries, notably Scotland, have borrowed from both (although it is anachronistic to claim Scots law is based on Roman law).
> 
> Features of the Anglo-Saxon tradition include the concept of binding precedent, i.e. inferior courts are bound by the judgments of superior courts, and the notion of adversarial justice, i.e. both parties are equal before the judge, who is expected to sit back with little intervention.
> 
> On the contrary, the civil law tradition tends to prefer a more developmental jurisprudence, i.e. less binding precedent, and inquisitorial judges, with some systems deploying a judge-prosecutor.
> 
> However, in practice nowadays I believe most legal systems in the West are much more similar than they used to be, thanks to a greater sharing of learning and a mutual acceptance of common principles of justice.
> 
> In practice, judges often decide a case more or less on gut instinct, then attempt to justify it with reference to the law. A cynic would say they manipulate the law to suit their rational, moral, social or political outlook, rather than allowing the law to guide them to those decisions. I think this is probably true throughout the world.
> 
> In those countries ascribing to the European Convention on Human Rights, judicial appointment is by application, which is usually open to lawyers of several years' standing. In those countries which deploy non-legally qualified judges, e.g. magistrates or justices of the peace, any member of the public may apply to be appointed.



I quote the above in full, in part because it goes back some time and in part because I think it is an excellent “restatement” of the situation.

What I was wondering is to what extent people feel that the quality of their everyday life is improved/worsened by their countries' judicial system.  

 For example:  
 - the US has about one million lawyers, while Japan has about 100'000.  
 - both Italy and Switzerland are civil law countries, but courts are fast and efficient in Switzerland, whereas in Italy ... (and I'm saying this as an Italophile)
 - racial discrimination was judicially enforced in both South Africa, with its Roman-Dutch legal tradition, and in the United States under Common Law.  

I think these examples suggest that it's not the system per se, but the way it's applied (or the way politicians allow it to be applied, which can be either through direct pressure, in the case of an authoritarian government, or, as in the case of Italy, by not allocating the funds needed to run an efficient system).  

Comments?

P.S. Can we extend the discussion worldwide?


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## Kajjo

Blackleaf said:


> Deep down inside, you know that Britain's judicial system is much more democratic than the rest of Europe's. We're innocent until proven guilty. Whereas the rest of Europe are guilty until proven innocent - thanks to the French Napoleonic system.
> 
> And that's why Britain needs to leave the EU, or else we'd have to adopt the Continental European model of justice. That means guilty until proven innocent; no trial by jury; no habeas corpus.



I have only rarely read such nonsense. Naturally, "innocent until proven guilty" is the normal rule _on the continent_, too. At least it is in Germany. 

Trial by jury proves again and again as quite bad, actually. Jury members have no education at all with regards to legal thinking and reasoning. US movies clearly show how disadvantageous this system is, the whole court procedure gets degraded to a mere show. The better performance wins.

Kajjo


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## Lombard Beige

Kajjo said:


> ... "innocent until proven guilty" is the normal rule _on the continent_, too. At least it is in Germany. ..



And everywhere else in Western Europe for many years, but the way the principle is applied, in practice, in some cases may lead people to think otherwise. I think the idea came from old French films, with screeching "traction avant" Citroens ("Merde! La Police!") and stripe-shirted criminals. 

But are the English-speaking countries completely blameless in this regard? People have been executed because they were proven guilty before a court, only to have their innocence proved later by scientific evidence (DNA, etc.).   

regards


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## Athaulf

maxiogee said:


> The Irish use the system they inherited from the British. It does clash with the usual practice on the continent. They tend to use a system based on the Napoleonic Code, whereas the UK and Ireland use an adversarial system much like one sees  in Hollywood portrayals of the American legal system.



With the added caveat that actual movie-style criminal trials are a rarity in most common law jurisdictions, because most cases are nowadays resolved by plea bargaining. In the U.S. and Canada, well over 90% of criminal cases are plea bargained without trial. I don't know if things are significantly different in the U.K. or Ireland.


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## Athaulf

Kajjo said:


> Trial by jury proves again and again as quite bad, actually. Jury members have no education at all with regards to legal thinking and reasoning.



The duty of jurors doesn't (or at least isn't supposed to) include any legal thinking, but merely the determination of facts about what happened based on the presented evidence. 



> US movies clearly show how disadvantageous this system is, the whole court procedure gets degraded to a mere show. The better performance wins.



U.S. movies have very little resemblance to the reality of how the system there works.  (Though I would say that they usually show it in unrealistically favorable light.)


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## Athaulf

ireney said:


> Funny! I was SO certain that in my country which is in mainland Europe it goes without saying that you are innocent until proven guilty! AND that criminal cases are judged by a jury (well,there's a judge there too ) ! I even thought we have the equivalent of "habeas corpus" and that I  recently read about someone who filled a whatyoumaycallit about habeas corpus (can't remember if it was accepted or not).



Most people significantly overestimate the quality of the criminal justice system under which they live; when I read true stories about people arrested under false suspicion, they invariably include very unpleasant surprises upon the discovery of how the system really works. I believe that the system here in Canada is as good as they get, and yet I certainly wouldn't want to be in the shoes of anyone wrongly accused of a crime even here.


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## Athaulf

beclija said:


> There are juries in this country in certain limited cases, but not as much as in the Anglosaxon system - and I think that's good so: A jury consists of laypeople who will as such be much more easily persuaded by a witty lawyer rather than objectively weighing the facts than any trained judge.
> Also, they will be easier influenced by biased media covering or public opinion. So, unless the specifics of the case at hand make it likely that the judge might be biased, I don't think having total idiots (including myself) in his/her place makes the whole affair any more fair or democratic.



I think you're far overestimating the beneficial influences of education and expertise. I've seen plenty of occasions in which people who have the most advanced education possible making ridiculous blunders, showing extraordinary naivete, and being swayed by silly prejudices even when it comes to their field of expertise. (And no, I'm not putting down educated people on a "sour grapes" basis, since I also hold pretty advanced degrees and I certainly don't consider myself an exception to what I'm writing.) When it comes to common-sense judgments about the most plausible reconstruction of events based on evidence and testimony, I think I'd trust 12 random strangers rather than a single expert of any kind.



> And to the other claims: Officially you're innocent until proven guilty in any country I know of; there are cases - especially when a biased public opinion puts pressure on a jury or, less likely due to their professional experience, judge - where it remains dead paper.


What happens far more often is that the prosecutor gives you the choice between going to the trial and risking a draconian sentence and pleading guilty to some significantly lesser charges.  Whether guilty or innocent, unless you have a fortune for a really good lawyer (and will to risk the draconian penalty, since no defense is foolproof!), your best bet is to just plead guilty and accept the lesser sentence.  This is what happens in the vast majority (>90%) of criminal cases in U.S. and Canada.


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## winklepicker

Blackleaf said:


> The accused in Britain are tried by the jury. The jury of their peers. It is the jury of 12 similar people to them who find them innocent or guilty. All the judge does is tell the person who is found guilty what punishment they will have. The judge does NOT declare a British person innocent or guilty. The people who declare a British person innocent or guilty are fellow British members of the public who are taken into court as the jury. That's about as democratic as you can get it.
> 
> Britain must keep the Anglo-Saxon method of law and needs to avoid having the EU impose the Napoleonic Law code on it.


 
Dear Blackleaf, I have observed that it is an unwritten rule of these forums that we show at least token respect for other people's systems of government, religious beliefs, moral codes etc. (You don't have to *mean *it, but it does oil the wheels!) Or perhaps it's not unwritten?

It also seems to be a habit round here that we don't post blanket assertions of opinion - especially presented as fact - without adding some kind of source, endorsement or evidence to back them up.

I would not want foreros from other countries less beautiful than ours (!) to think that your opinions are held universally in Britain - or even by a majority. We have a long history of xenophobia to expunge - see quote below.

I hope you don't mind my mentioning it.  

_Brittanus:_ Caesar - this is not proper. 
_Theodotus:_ How! 
_Caesar:_ Pardon him, Theodotus: he is a barbarian, and thinks that the customs of his tribe and island are the laws of nature. 

_George Bernard Shaw, Caesar and Cleopatra, Act II_

On the topic, I - and many like me - are very concerned by the recent erosion of such freedoms as habeas corpus, and are thankful for the European Convention on Human Rights which we helped frame  and which seems to be the only thing keeping our government from turning this island into a police state.


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## Lombard Beige

Another error that should be corrected in the discussion is the failure to distinguish between CIVIL and CRIMINAL law. 

The Napoleonic Code is in fact the "Code Civil", see: 

http://www.napoleon-series.org/research/government/c_code.html

This is the text of the Napoleonic "Civil Code" in English. A number of later codes are derived directly from this Code including those STILL in force in the State of Louisiana and in the Province of Québec (bilingual: very useful for translators!). 

The present French code is a continuation of the Nap. Code as is the CC of Belgium, which I believe is closer to the original text. The original version of the Austrian CC antedates the NAP. code, while the German BGB is a later and more academic codification. Lastly, there is the Swiss CC (trilingual, including Italian), which is easy to read, simple to understand and easy to apply ... but was criticised as "rustic" by the German academics. [There will always be critics whatever you do]. The Civil Codes of other countries are inspired by these codes. 

Scotland, as "stranger in your midst" pointed out, has a "mixed system" of its own, but the absence of codification must be a bit complicated compared for example with Switzerland, or not? i.e. you need droves of lawyers to identify the applicable law.

All this may seem less spectacular than the problems of Criminal Law, with  memories of Perry Mason, Maigret, prisons, hangings, the guillotine, etc., but I think civil law related to births, deaths and marriages, inheritance, contracts, collecting debts, employment, etc., probably affects people's everyday life more than criminal law, or not? 


regards


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## winklepicker

Also I like the idea of a justice system that seeks to uncover the truth. Having served on a jury, I know that the adversarial system means that trial outcomes depend not on the facts but on the quality of the lawyers.


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## Lombard Beige

winklepicker said:


> Also I like the idea of a justice system that seeks to uncover the truth. ...



Is it fair to say that the adversarial system in the Common Law jurisdictions seeks to establish whether the accused is guilty beyond all reasonable doubt ? 

The problem of course is that the person may indeed be guilty beyond all REASONABLE doubt, but not be guilty in actual fact because the circumstances are completely UNREASONABLE, e.g. the case described by Thomas Hardy in the "Mayor of Casterbridge", where a man commits a stupid mistake in completely unreasonable circumstances. (If I remember rightly he sells his wife and child under the influence of drink, and when he is sober it is too late to do anything about it). [I am mentioning this as a legal case example, not for its literary merits].

I believe that this has happened many times. What is dramatic is when the legal Powers that Be insist that Justice (?) must take its course in such cases, even when new evidence is discovered, but cannot be used for some legal technicality, as it was obtained in the wrong way, or something similar. 

And this becomes doubly dramatic if something like the death sentence is involved. I don't know too much about Islamic law, but the same would apply there to cutting off someone's hand. What happens if that person is later found to be innocent? Do they cut off the judge's hand for making a mistake?

A system that aims to establish the truth should, at least in theory, tend to facilitate the overturning of previous decisions found to be in contrast with the truth.

regards


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## maxiogee

winklepicker said:


> Also I like the idea of a justice system that seeks to uncover the truth.


 


Lombard Beige said:


> Is it fair to say that the adversarial system in the Common Law jurisdictions seeks to establish whether the accused is guilty beyond all reasonable doubt ?


Yes, it's fair to say that, but that doesn't actually mean that the truth is arrived at, _even when_ the system actually establishes what it seeks to establish.

I too served on a jury and I doubt that the truth about what actually occurred on the night of the events alleged will ever be known. It certainly wasn't established in the courtroom I sat in!


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## Lombard Beige

maxiogee said:


> ... I too served on a jury and I doubt that the truth about what actually occurred on the night of the events alleged will ever be known. It certainly wasn't established in the courtroom I sat in!



And was the accused convicted? 

The Scots have maintained, I believe, the continental "Not proven" alternative, which the true blue common lawyers don't like, but it does distinguish between people who are probably guilty, but it can't be proved, those who are "guilty beyond all reasonable doubt", and those who are found innocent (and whom all systems seem to protect: double jeopardy, etc., while the wrongly convicted "guilty" person seems to be less well protected, particularly if they don't have the means or vocal supporters).

Post scriptum: I forgot the principle of Roman law, on which the continental systems are all ultimately based: *In dubio pro reo* ... [in case of doubt the court must find in favour of the accused], which Blackleaf seems to ignore.

regards


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## winklepicker

Lombard Beige said:


> Is it fair to say that the adversarial system in the Common Law jurisdictions seeks to establish whether the accused is guilty beyond all reasonable doubt ?


 
Not really: the prosecution has to _prove_ that the accused is guilty beyond all reasonable doubt. A jury is forced to acquit, even if they are certain the accused is guilty, if it has not been satisfactorily proved by the prosecution. Exactly this happened on my jury service - and it must be commonplace.

The Scots have (or used to) a verdict of _not proven_. That would help. But an investigating magistrate (procurator fiscal?) would be even better.


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## cirrus

Just before people run away with the idea that people in the UK seem to think their legal system is a superior being, I doubt very much this is the case. Blackleaf's rant represents a minority strand of thought which persists in believing that evil only starts anywhere east of Dover.


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## Lombard Beige

So, we have established that there are currently three options available on the menu in Europe:

*Guilty*: the prosecution has to *prove *that the accused is guilty beyond all reasonable doubt. Otherwise, because of "presumption of innocence" (Common Law) and the principle of "in dubio pro reo" (Roman Law), the accused must be released.

*Not proven*: (only Scotland (?) and civil law jurisdictions):  the  procurator fiscal, Procureur de la République (France) / du Roi (Belgium), procuratore (Italy), fiscal (Spain) *has failed to prove *that the accused is guilty, but has presented sufficient evidence to cast doubt on his innocence. (I think this has the practical advantage that, for example, the next time he kills someone it counts against him (or her, as the case may be) )

*Innocent*: the prosecution *has failed to prove* that the accused is guilty beyond all reasonable doubt.

As far as I know Québec is a common law jurisdiction for Criminal Law, but  a civil law jurisdiction  (Code Civil du Québec) for everything else. What about Louisiana (which also has a Civil Code)?  I suppose it's like Quebec, or do they have a French style Criminal Law system?  That would be rather unusual in the US of A. 

regards


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## maxiogee

maxiogee said:


> I too served on a jury and I doubt that the truth about what actually occurred on the night of the events alleged will ever be known. It certainly wasn't established in the courtroom I sat in!





Lombard Beige said:


> And was the accused convicted?




As it was a jury trial I'm _*no*_t meant to discuss the process or reveal anything about what happened! 

The problem is that I was the only one who held out for a conviction although the others agreed with me that something did happen which was not properly accounted for. They all had a 'feeling' that he was guilty - and I feel that the system let the complainant down. He was, in Irish law, innocent _(and I accept that)_ - but under a different system a different result might very well have been returned.


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## Lombard Beige

maxiogee said:


> As it was a jury trial I'm _*no*_t meant to discuss the process or reveal anything about what happened!  ...



Sorry, I shouldn't have asked. 

I wanted to add, going back to the beginning of the thread, that I think the only way to discuss this kind of thing usefully is, as we are doing now, that is to say with an open mind and not with a kind of football (soccer) spirit, i.e. the Common Law team is better than the Civil Law team in every way or vice versa. 

In actual fact, some features of one tradition are better than the other and vice versa. Possibly, the adversarial approach is better in criminal law, while the Romano-German law approach is better (less complicated) in civil law. 

And  even within the two traditions, some countries do some things better than others. The Italian Civil Code, for example, is considered to be an excellent code, and it possibly is because, as the court system works badly, the code evidently offers sufficient guidance for people (the vast majority) who want to live by the law and act in good faith. Also, the arbitration system is widely used, again because people try to avoid the courts. As I've mentioned elsewhere, because of certain spectacular aspects, the Mafia, political corruption, etc., Italy is often thought to be a rather lawless place, but in actual fact it's not. The crime rate is lower than many other countries in Europe, etc.   

So, as my father used to say: "To judge and condemn, one must first comprehend ..." [He wasn't a judge but a seaman].

regards


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## Qcumber

Blackleaf said:


> Deep down inside, you know that Britain's judicial system is much more democratic than the rest of Europe's. We're innocent until proven guilty. Whereas the rest of Europe are guilty until proven innocent - thanks to the French Napoleonic system.


Can you prove it by a legal text or is it just the voice of prejudice?


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## TRG

There hasn't been much mention of "tort law". I believe the tort law system in the U.S. has gone completely off the tracks, so I would be interested in hearing how this is handled in Europe. Examples of problems in the U.S. system are venue shopping, excessive punitive awards, contingency fees, and excessive legal fees and costs.  Another example of something that troubles me is personal injury lawyers advertising on TV for clients.


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## John-Paul

What I like about the jury system is that an every day citizen, thanks to the American Constitution, is able to take down a ruling president. You don't see that in Europe because somehow we trust the people who rule us. In the Netherlands the queen for some reason presides, not the lady with the blindfold, the scale, the sword and the one boob.


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## Lombard Beige

TRG said:


> There hasn't been much mention of "tort law". I believe the tort law system in the U.S. has gone completely off the tracks, so I would be interested in hearing how this is handled in Europe. Examples of problems in the U.S. system are venue shopping, excessive punitive awards, ...



Well, it's difficult to give an answer for Europe as a whole. For the UK and ROI (Republic of Ireland), I think our friends there can comment.

venue shopping: I assume this would be determined by the federal structure of the USA. Some states (like Delaware for corporations) offer more "attractive" laws, etc. In Europe, even the federal countries tend to apply the same laws (civil code, etc.) nationwide. However, the existence of different sovereign states means that some countries like Luxembourg offer more attractive laws for corporations, others like Ireland, Cyprus, etc., more favourable tax conditions, and others like Switzerland and Austria, bank secrecy.

excessive punitive awards: I think they are generally lower in Europe.

contingency fees and lawyers' advertising: strangely, the centre-left Italian government, which resigned yesterday after just 9 months, has introduced an American-style reform including these innovations as part of a so-called "liberalization" drive. The previous centre-right government failed to introduce this kind of "reform".  The government also abolished the minimum rates for lawyers, which was criticized because, like advertising, which favours advertisers with more money, it encourages cut-throat competition.

regards


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## Lombard Beige

TRG said:


> T... personal injury lawyers advertising on TV for clients.



These are the "*ambulance chasers*", right?

As I said in my last message, advertising by lawyers has recently been "liberalized" here in Italy, so it's too early to say what the consequences will be. I also doubt whether they will do any TV advertising. 

It would be interesting to know what the current UK/ROI situation is as they are the closest to the US, in legal tradition, language, etc. 

regards


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## maxiogee

We in Ireland had a liberalisation for lawyers some years ago and it led to lots of shady advertising implying you;d win your case if X handled it. That has since been tightened up considerably. Lawyers are stilll allowed to advertise but with a lot more constraint on what they can say.


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## Lombard Beige

maxiogee said:


> We in Ireland had a liberalisation for lawyers some years ago and it led to lots of shady advertising implying you;d win your case if X handled it. That has since been tightened up considerably. Lawyers are stilll allowed to advertise but with a lot more constraint on what they can say.



So, one couldn't advertise like this:

Need a lawyer? Even if you're Al Capone or Jack the Ripper, with Merry Pason ... no problem. 

Under both systems, the lawyer's primary duty is protect his client rather than to promote justice, right? 

regards


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## cirrus

Lombard Beige said:


> These are the "*ambulance chasers*", right?
> 
> ..I also doubt whether they will do any TV advertising.
> 
> It would be interesting to know what the current UK/ROI situation is as they are the closest to the US, in legal tradition, language


In the UK so far there isn't really TV advertising for lawyers. There has been a flurry of advertising for people involved in accidents.  This is because legal aid - financial support for people involved in legal cases has all but disappeared and has been replaced by a system whereby you are only likely to take on a case where you are pretty certain you will win and can therefore get your costs granted to you.  The effect on access to civil law has been dire.  

There was a boom in personal accident cases where legal firms (often not even using people with legal training) took on any amount of alleged accidents promising big amounts for the people involved. Several of these companies have collapsed.  Where the court finds in favour of the people involved in accidents often these firms take a hefty chunk of commission out of the winnings.  Insurance premiums  eg for motorists have rocketed as a result.  Companies and public bodies have also become more risk averse because of the fear of being held responsible for accidents they may have contributed to.


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## Lugubert

Being a fairly normal Swede, I know nothing about lawyers and laws. I've never seen an advertisement for a lawyer (except for yellow pages entries) and never felt the need for one. For example, I have bought and sold a house. No lawyers involved; the process is regulated by law so the estate agent has no problems.

Some say somtimes that we here live in a "nanny state". Maybe, but there are benefits. I translated a Belgian estate lease contract from French. It was drawn up by a lawyer, detailing conditions to the extreme. I suppose that in a similar case in Sweden, you could buy a valid and comprehensive form, supported by current law, in any stationery shop.

Of course we're innocent until otherwise proved.



> Examples of problems in the U.S. system are venue shopping, excessive punitive awards, ...


I tried googling venue shopping, but found nothing. My dictionaries did'nt help either. Regarding "punitive awards", I have the feeling that too many law suits end up in too ridiculous costs in the US compared to civilized countries.

Summarizing, I feel sufficiently safe, knowing that no amateur jury or politically appointed lawyers/judges will be involved, should I for some improbable reason be brought to court.


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## Lombard Beige

Lugubert said:


> I tried googling venue shopping, ....



Hello:

"Venue shopping" in your context, as you have, I assume, no internal federal system of provincial laws, would mean, for example, indicating in a contract that the governing law is not that of Sweden, but rather of Norway, or Denmark, or Finland, because of some perceived advantage, particularly in terms of the outcome of any litigation.

Another example of the principle of venue shopping applied to companies, would be to incorporate a company in one of the Baltic States, or in your case, as you are in the EU, in Luxembourg or Ireland.   

In other words, it means going where the law is most convenient, which as you say and as the high lawyer/population ratio that I calculated in the "Is democracy overrated" thread shows, would *for the ordinary citizen* be Sweden or Finland, unless we go to Japan, but that would involve a culture shock that is too great for most Europeans.

regards from Italy


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## TRG

The term "venue shopping" is apparently unfamiliar to some, so I will offer an explanation. I found this one, which is essentially what I was referring to: 

_Venue is the legal concept that determines the best place to hear a law suit. Unfortunately, some states allow cases to be heard in their jurisdiction *based upon negligible contacts* *with the state*. Usually these states or jurisdictions have a reputation for being good places to bring a law suit with *plaintiff-friendly juries*. This *can result in huge damage awards* that a company must pay._

I have highlighted the most important aspects. I hope that helps.


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## Tatzingo

cirrus said:


> In the UK so far there isn't really TV advertising for lawyers. There has been a flurry of advertising for people involved in accidents.  This is because legal aid - financial support for people involved in legal cases has all but disappeared and has been replaced by a system whereby you are only likely to take on a case where you are pretty certain you will win and can therefore get your costs granted to you.  The effect on access to civil law has been dire.



This is true to an extent as most lawyers will now take on these cases on a "no win no fee" basis. However, some lawyers will take on a case even if the chances of winning are only 50-50, the consequence of course is that they charge a slightly higher than usual fee to account for the risk of not winning.
Although it might be thought that the client will have to pay something in any event, clients can usually take out a form of insurance that covers them in the event that they lose the case. The insurance company will then pay the costs. So, really, whatever happens in that instance, the client is paying for nothing more than an insurance policy premium. 




cirrus said:


> There was a boom in personal accident cases where legal firms (often not even using people with legal training) took on any amount of alleged accidents promising big amounts for the people involved. Several of these companies have collapsed.  Where the court finds in favour of the people involved in accidents often these firms take a hefty chunk of commission out of the winnings.  Insurance premiums  eg for motorists have rocketed as a result.  Companies and public bodies have also become more risk averse because of the fear of being held responsible for accidents they may have contributed to.



I'm not so sure that this is true anymore. To my knowledge, solicitors' costs for RTAs (road traffic accidents) have now been partly standardised and most firms are paid their fees by the "winner" usually from their "winnings." This is no longer a percentage as it once might have been but it is calculated based on hours spent, letters, phone calls etc as in any other case that a solicitor might handle. So regardless of whether the client ends up with £125,000 in "winnings" or £12,500, the bill ought to be the same.

Tatz.


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## Tatzingo

TRG said:


> The term "venue shopping" is apparently unfamiliar to some, so I will offer an explanation. I found this one, which is essentially what I was referring to:
> 
> _Venue is the legal concept that determines the best place to hear a law suit. Unfortunately, some states allow cases to be heard in their jurisdiction *based upon negligible contacts* *with the state*. Usually these states or jurisdictions have a reputation for being good places to bring a law suit with *plaintiff-friendly juries*. This *can result in huge damage awards* that a company must pay._
> 
> I have highlighted the most important aspects. I hope that helps.



So, it's like a consumer shopping around for a shop that has the lowest prices.

In this case, it is someone shopping around for a court that has a reputation for paying out to people who sue.

Tatz.


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