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A PROJECT REPORT ON

“Comparative Study Between Civil Law and Common Law System”

(Comparative Law)

Submitted to Submitted by Dr.G.P.Tripathi Pragati Dewangan

Dirctor of Mats law school B.A.LL.B.(5th Semester)

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DECLARATION

I hereby declare that the project work entitled “Comparative Law “ submitted on the MATS

University is the original work done by me under the guidance of Pankaj Umbarkar ,Asst. Prof.,

MATS Law School, Gullu, Arang and this project has not performed the basis for the award of

any Degree or Diploma and similar project if any.

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ACKNOWLEDGEMENT

I am deeply indebted to Dr.G.P.Tripathi Sir,Director of, MATS Law School, MATS University,

Raipur for constantly guiding and encouraging us to undertake and complete this project. We are

thankful for his patient disposition.

I am very thankful to Director Sir, and all other staff of the MATS Law School, MATS

University, Raipur for giving me opportunity and facility to complete this work.

Pragati Dewangan

5th Semester, B.A-LLB

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Research Methodology

The study of conducting research is known as research methodology. The word research is

composed of two words re and search in what’re’ means again or over again or a new and search

means to examine closely and carefully or to test and try.

Methodology is the systematic, theoretical analysis of the methods applied to a field of study, or

the theoretical analysis of the body of methods and principles associated with the branch of

knowledge.

Therefore, research methodology means the methods for doing a research.

There are two ways of conducting research

1. Empirical method

2. Doctrine method

Empirical method

It means relying solely on observations and experiment not on theory. The empirical research is

carried out by collecting and gathering data or information relating to universe by a firsthand

study. It is an enquiry that attempts to discover and verify general rules allowing us to

understand why human beings behave the way they are behaving. They do interviews;

questioner, surreys and case study are used to discover the human conduct.

Doctrinal Research

It is carried out by anal sing the theories. It is not concerned with the people but with the

documents. The scope is narrower because it studies about the doctrine or the authority says. In

this type of research there is no need for any type of training or of any field work. This type

research contains library research etc...

In this project doctrine research method is used, for analyzing the subject theoretically.

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Table Of Contents

1. Introduction

2. General provision regarding Search and Seizure

3. “To be a witness” real meaning

4. Historical background

5. Correcting the flaw

6. Conclusion

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Chapter-I

Introduction

What is common law?

Newcomers to the field of law will explain Common law as the law that is common to the land

of England. While this might hold truth, common law has rich history and shaped through

tremendous amounts of pressure, both historically and politically, and alteration throughout

generations to make it how it is today. It is not sufficient to simply label it as such because there

is so much more depth in studying common law.

Although having varied fundamentals, Civil law is another common legal system being used in

the world today. It is based on the principle of Corpus Juris Civilis which will be discussed later

on this paper. Moulded along with local practices and largely interpreted with good intentions,

Civil law is touted as the less rigid and more accessible of both of these legal systems.

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Origins

Sir Matthew Hale, one of the most prominent lawyers who once served as The Lord Chief

Justice of England, stated that the origins of Common law are as undiscoverable as the source of

the Nile River.1 Of course throughout its tremendous history, it is hard to determine the exact

source of Common law. However, for purposes of understanding, abstracts of the origins of

Common law can be determined.

There was no law to govern the Kingdom of England wholly during the reign of King Alfred the

Great (871-899).2 The population was small and transportation as well as communication was

limited. Despite this, the Anglo-Saxons created the Kingdom of England and its counties (or

shires) headed by sheriffs. These shires were subdivided into hundreds which in turn consisted of

a number of “vills” or townships. The trial of cases, as well as aspects of administration was

dealt by Royal officials in “courts” or assemblies.

In general, there were no common sources of law from which all the shires and hundreds drew.

The system of law was localised.

The realisation of a unified system of judging came under the rule of William the Conqueror. He

established a system whereby he would sit on his bench and decided on cases himself. He would

have his entourage of court and courtiers following him around throughout the land.

King Henry II (reigned 1154-1189) was particularly interested in law. It was him who set up the

foundations of ‘professional’ judges. He picked them from people from the clergy or laymen,

people who are learned in the law. He set up a permanent court which has a permanent place at

Westminster (King’s Bench of judges).

Common law in its early existence it consisted of procedural remedies rather than substantive

rights in the middle ages. It originated from the King’s Court (Curia Regis) who originally

1Hale, Matthew (1820). The history of the common law of England. Oxford University. Pp. 54.2 Rivlin, Geoffrey (2004). Understanding the Law. Oxford university. Pp. 21.

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administered it. Common law is popularly known as judge-made laws mainly because the roles

of legislators in developing the law rather than the judges came only in the late 19th century.3

The term Common law actually came from the Norman Conquest. It is laws that are common to

the realm of the Kingdom of England as opposed to the various and scattered amounts of tribal

laws that existed and applied throughout communities that existed then. Before the Norman

Conquest, justice was primarily delivered via County Courts and presided by diocesan bishop

and the sheriff. It is through these courts the trial by jury system began.4

The common law of England was largely created in the period after the Norman Conquest of

1066. The Anglo-Saxons, especially after the accession of Alfred the Great, had developed a

body of rules resembling those being used by the Germanic peoples of northern Europe. Local

customs governed most matters, while the church played a large part in government. Crimes

were treated as wrongs for which compensation was made to the victim.

What is unique about Common law is that it developed from custom from where there was no set

law. Common law continued to thrive even when written laws were developed. Canon Law was

introduced to the churches and administered by literate clergymen by the Normans during the

invasion but it remained unpopular compared to Common law because of the solid foundation

and sophistication of early Anglo-Norman system in the Kingdom and also the disarray of the

church’s system.

English courts of Common law are Common Pleas, Exchequer, and King’s Bench.

The court of Common Pleas was described as "the court which, more than any other, shaped the

medieval common law" by John Baker, a legal historian.5 Though the court of Common Pleas

was originally established to relieve pressure on the court Coram Rege (court in the presence of

the king), it was the platform for many influential legal cases and it heavily influenced the

procedures of other Common law courts. King Henry II ordered five of justices of his Curia

Regis to hear the “Common Pleas”: Magna Carta, c. 17, provided that the “Common Pleas”

3 http://www.britannica.com/EBchecked/topic/128386/common-law/40224/The-origin-of-the-common-law4 “Common law”. Catholic Encyclopedia. New York: Robert Appleton Company. 1913. 5 Stated in the book, Introduction to English Legal History. John Baker is a member of the Royal Historical Society, British Academy and Burgon Society. He was knighted in 2003.

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should be heard “in a certain fixed place” (Which was soon designated as Westminster). This

court is the third highest common law court for 600 years.

The exchequer was mainly responsible for the management and collection of revenues but it

became competent to try most classes of civil case.6 In more traditional England, Exchequers

were divided into The Exchequers of Receipt (collection of revenue) and the Exchequer of Pleas

(concerned with the king’s revenue). The system of exchequer was abolished in 1834 under the

reform of William Pitt, the youngest ever Prime Minister of England.

The King’s Bench became independent in about the mid-thirteenth century. The King’s Bench

has the widest jurisdiction amongst the three courts. It could hear civil cases; it was only one of

the three that could hear criminal cases; it has a supervisory jurisdiction over inferior tribunals

which it exercises largely by use of the prerogative writs and writs of error.

By 1875, all the three common law courts were abolished.

6 “General Principles of Law”. Clive R. Newton. London: Sweet & Maxwell. 1983.

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System of common law courts in England and Wales before the Judicature Acts 1873-1875

(taken from Wikipedia.org. Retrieved, 30th November 2009)

Common law conforms to the inner workings of a community whereby it adapts itself to the

customs of the people because of the acts of the pioneers of Common law to roam the land,

giving judgements based on local customs and beliefs. Even when there were established

permanent courts, the cases that are presided over are recorded for further reference by both

judges and lawyers in the courts. This authority of previous cases is known as judicial precedent

and will be discussed later on in this paper.

While Common law largely originated from the land of England, Civil law is primarily inspired

by the Romans. Fundamentally, it is a large collection of works of jurisprudence (Corpus Juris

Civilis) that is issued from 529-534 by order of Justinian I, Eastern Roman Emperor. Other

names for Civil law are Continental Law and Romano-Germanic Law.

The law that had been in force throughout the Roman Empire when it controlled most of Europe

and the Middle East was to some extent supplanted by Germanic Laws when Germanic tribes

carried out their great conquests. The principle of personal (as opposed to territorial) law was

observed by the invaders, however, and thus the former Roman subjects and their descendants

were permitted to follow the Roman law (leges romanorum) in their affairs with one another.

Although codified sources could be traced back well before the Justinian era, such as the famous

Code of Hammurabi, the significance of the code created by Justinian I is that it is more of a

compilation of works of jurisprudence and all existing imperial constitutions dating back to the

time of Hadrian (76 - 138). All these collection provided the model for division into books that

were divided into titles. These codices had developed authoritative standing.7

The Roman principles and concepts itself was entrenched in the laws used by the medieval

church. As trade and commerce emerge as an important aspect of life in the middle ages, the

Germanic laws was not as adequate as it was before. That, in addition to the expansion of Roman

knowledge and ideas throughout most parts of Europe and the Middle East, brought life to the

usage of Civil law.

7 http://en.wikipedia.org/wiki/Corpus_Juris_Civilis

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In the Justinian’s Code, the law provided for strength in the rise of Christianity, asserting such

laws as laws against heresy, paganism, and also Judaism. The first part of the law was completed

in 529 but due to legal reforms by Justinian himself, it had to be renewed. A second edition of

the Codex (Codex repetitae praelectionis) was introduced on December of 534. The former

Codex was then repealed when the second edition was issued.8

The emperor removed repetitive and confusing laws from the times of Romulus9 in the Codex,

and also laws which are not capable to be followed by ordinary humans, in order for “all men the

ready assistance of their true meaning.”10

Scholars of Roman law were held in high regard as by 1500 the Corpus Juris Civilis had become

the basis of legal science throughout Western Europe. This Codex inspired several critical

codifications of law11; one is by Napoleon Bonaparte in a code of law now known as Code

Napoleon, a code that strongly influenced the law of many other countries. Historians have

called the Napoleonic Code "one of the few documents which have influenced the whole

world."12

In England there was some interest in Roman law during the Renaissance; there, however, the

early centralization of the legal system and the existence of an independent class of lawyers with

an interest in the law as administered in the courts ensured the triumph of the common law.

Nevertheless, civil law influenced the common law in the fields of admiralty law, testamentary

law, and domestic relations, and civil law became part of the basis for the system of equity.

Though many believe that Civil law is secular, that it is not conforming local customs or

practices, Civil law’s adaptation is selective and subtle.

Sometimes, Common law could not simply solve a problem by applying local customs and

practices, Hence there is a need for a statute that is agreeable on the part of everyone. Roman law

was particularly influential because European customary law had developed in an agrarian

8 “Introduction to Roman Law”. James Hadley. Read Books. 2007.9 Romulus was the founder of Rome, along with Remus. During the reign, several laws made were considered as absurd, one of which includes wife beating is acceptable under the Law of Chastisement.10 This quote is taken directly from the first page of the preface of Justinian’s Code. 11 http://www.answers.com/topic/roman-law12 “The Napoleonic Revolution”. Robert B. Holtman. Baton Rouge: Louisiana State University Press. 1981.

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economy and was often inadequate for an economy in which commerce played an increasingly

larger role.13

13 http://www.answers.com/topic/roman-law

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Chapter-II

Judicial Decisions vs. Codes and Statutes

For common law, it is the judges decisions in the past that brings significance, in contrary to civil

law whereby laws that are codified are the only official source of law.

When there are substantially similar facts in a case parallel to previous ones, legal principles in

that previous case would be applied to the present case, for as long as it is suitable. By this

method, precedents are developed. This basic principle is known as ratio decidendi (rationale for

a decision). Ratio decidendi is defined as “The principles or reasons underlying a decision, apart

from the special peculiarities of the case”14

In civil law, judges do not enjoy a similar privilege. They are recruited as new graduates and

specifically trained to be judges. Judges in the civil law can be categorized as civil servants. This

is largely due to the fact that judges need to be highly astute to be able to properly interpret the

laws in a statute. A dissenting opinion in a legal case is an opinion of one or more judges

expressing disagreement with the majority opinion of the court which gives rise to its judgment.15

Dissenting judgements are not tolerated, as it is feared that they could undermine the judicial

process..

There is another principle called stare decisis (to abide to decided cases), applied in common

law. This principle is an abbreviation from the phrase stare decisis et quieta non movere "to

stand by and adhere to decisions and not disturb what is settled."16 Thus, barristers that have a

high knowledge of cases would be drawn to become judges in common law. Unlike civil law,

common law judges give dissenting judgements. However, appeal procedures developed.

Also in common law, there is a principle of obiter dicta, which means a statement “said by the

way”. Although this is not binding, these comments that judges made about a case is marked as

persuasive. Obiter dicta can be by way of illustration or on hypothetical facts. This principle is

14 Legal Dictionary. Page 368 (International Law Book Series)15 http://en.wikipedia.org/wiki/Dissenting_opinion16 “Handbook of elementary law, Part “ Milo Jesse Bowman. California: West Publishing co. 1929.

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an observation by a judge which is either not necessary for the decision of the case or does not

relate the material facts of the case.17

The principles of ratio decidendi, stare decisis, and obiter dicta is not observed in civil law.

Though the high courts are respected and civil law systems are now reporting cases, these

principles can only be persuasive, never binding.

17 Legal Dictionary. Page 363 (International Law Book Series)

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Writs and Equity

A writ is a translation of Late Latin “breve” (a letter), since it had the form of a short letter

(German”brief”). The English word “brief” is used interchangeably with writ in older texts.18

In history, a writ was a letter, or command, from the King, usually written in Latin and sealed

with the Great Seal. At a very early stage in the English common law, a writ became necessary,

in most cases to have a case heard in one of the Royal Courts, such as the King's Bench or

Common Pleas. The writ would act as a command that the case be brought before the Royal

Court.

If whereby a plaintiff wished to have a case heard by a local court, or by an Eyre (the right of the

king (or justices acting in his name) to visit and inspect the holdings of any vassal) 19 that is

visiting, a writ is not necessary. In local courts, action can be taken after an informal complaint,

which can be done orally or in writing.

However if a plaintiff wished to avail themselves of Royal — and by implication superior —

justice in one of the King's courts, then they would need a writ, a command of the King, to

enable them to do this. It is important to remember that in the very early stages of the evolution

of the common law, recourse to the King's courts was unusual, and something for which a

plaintiff would have to pay.20

The writ would usually have been purchased from the Chancery, although the court of the

Exchequer, being in essence another government department, was able to issue its own writs.

Writs were ossified by the 13th century. The hole left by this ossification is filled by equity, a

more flexible law.

In modern law terms, a writ is a formal written letter issued by a body with administrative or

judicial jurisdiction. Examples of writs includes: writ of mandamus, writ of prohibition, writ of

habeas corpus, writ of error, and writ of Certiorari.

18 Legal Dictionary. Page 218 (International Law Book Series)19 http://en.wikipedia.org/wiki/Eyre_(legal_term)20 http://www.constitution.org/writ/writ_def.htm

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Aristotle once suggested that a legal rule may be ignored by a judge if its literal application will

cause would cause an injustice which the legislator could not have intended. This is the basic

foundation of equity. It is without a doubt that at times there could be injustice due to the

automatic application of legal rules.

Equity, in basic terms, is a body of laws that was enforced in the court of Chancery of England in

order to aid, supplement, or correct the common law. To a certain extent, equity is separate body

of law from the common law.

It is also used in the law, as a synonym to the words “justice” or “fairness”. In this sense, it is

used in common law decisions as well as in those of equity proper, as a gauge of moral rightness

in the interpretation of statutes and in the application of legal rules.21

In common law, equity supplements the strict rule of law where their operation could operate

harshly. In civil legal systems, broad "general clause" allow judges to have similar leeway in

applying the code.22

21 Legal Dictionary. Page 70 (International Law Book Series)22 http://en.wikipedia.org/wiki/Equity_(law)

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Chapter-III

Interpreting laws

Because of the principles instilled in the common law systems such as stare decisis and ratio

decidendi, the tendency of the laws in this legal system to become rigid is a reality and this

rigidity is what gave rise to the development of equity. Also, the small number of judges sitting

on the common law courts gave rise to an inflexible system of common law because of this

powerful and tight-knit judiciary.

According to Lord Denning, 'It is the foundation of our system of case law'. However, Denning

was 'against is its too rigid application - a rigidity which insists that a bad precedent must

necessarily be followed'. It is the doctrine's rigidity that can prevent developments to meet the

changing needs of society. However, this was recognised in the House of Lords 1996 Practice

Statement. In addition, judges in the lower courts are adept at avoiding the doctrine's rigidity.23

This is where equity plays a part in easing the rigidity of the common law. Equity softened the

rigidity of the common law and ensures that judicial decisions were not unfair and contrary to

moral conscience.24

In common law jurisdictions, the judiciary may apply rules of statutory interpretation to

legislation enacted by the legislature or to delegated legislation such as administrative agency

regulations.25

Judicial reviews of statutes and executive actions are practiced in common law systems and not

in civil law systems. Judicial review is the doctrine in democratic theory under which legislative

and executive action is subject to invalidation by the judiciary.26

The tendency of civil law to be rigid is more explainable as it is believed that laws that stemmed

from codifications must be strictly followed, therefore leaving little space for flexibility.

23http://www.coursework.info/GCSE/Law/The_doctrine_of_precedent_is_based_on_th_L123335.html#ixzz0aMFp1kLV24 http://ecours.univ-reunion.fr/ecours/IMG/pdf/Common_law.pdf25 http://en.wikipedia.org/wiki/Statutory_interpretation26 http://en.wikipedia.org/wiki/Judicial_review

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However, the concept of good faith that is applied in civil law in interpreting the codes makes

comparatively less rigid than common law.

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Judges, Lawyers, and Trials

The judges in the common law system are picked from the experienced lawyers while in civil

law systems the judges are specially trained to be a judge as a career. Lawyers in common law

systems are typically divided into two, namely barristers and solicitors. Barristers specialize in

litigation while solicitors traditionally do not appear in courts.

One clear difference between common law systems and civil law systems is the mode of trial.

Common law widely practice adversarial system, also known as confrontational system while in

civil law, the inquisitorial (or collaborative) system is more common.

Differences between adversarial system and Inquisitorial system27

The adversarial system works by the exposure of both sides of the story, where there are two

sides acting as opponents, so to speak. Both side would argue their case and expose everything

about the case. In the inquisitorial system, the judges play a more active role.

The lawyers play a major part in the adversarial system. They are in charge of handling the case

in representation of their client who hired them. In the adversarial system, the parties are the

active component compared to the judges. In contrary to the adversarial system, in the

inquisitorial system it is the judges who sets the agenda in the courtroom and controls the trial.

Arguments on both sides are also different. In the adversarial system, the arguments and debates

are extensive and fundamental. In the inquisitorial system of trial, debates and arguments are

modest and restricted. Therefore, the former has more of an inductive style of reasoning while

the latter has a deductive style.

Lawyers are the primary players in the adversarial system as they control how the trial goes.

They debate and oppose each other, while lawyers in the inquisitorial system advise and inform

the judges. Lawyers in the inquisitorial system work together with judges in order to achieve a

just result.

27 This comparison is through examining various sources of the internet, namely Wikipedia, docstoc.com, Google Scholar, Google books, and flipkart.com. The book used is Questions and Answers on Malaysian Courts, Statutes, Cases & Contract, Tort and Criminal Law by Nuraisyah Chua Abdullah.

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A judge is treated more like a political VIP in the adversarial system. He plays a passive role,

only examining and judging the relevancy of evidence and its discovery as the trial emphasizes

on procedural correctness. Facts gathered by the lawyers are taken into play, and then the truth of

a case is extracted. In the inquisitorial system, judges who are highly trained carry the burden of

extracting facts and controlling the conduct of the parties. Judges have the power to call witness

to question them himself and request assistance from experts and state officials.

For evidence brought into the court, any evidence brought into the court is tested for its accuracy

by the examination-in-chief in the adversarial system. As an accused is not compelled to give

evidence in a criminal adversarial proceeding, he may not be questioned by prosecutor or judge

unless he chooses to do so. However, should he decide to testify, he is subject to cross-

examination and could be found guilty of perjury.28

In the inquisitorial system, all stages of examination in the trial are handled by the judge.

Evidence and witnesses are not brought to the trial for the processes of examination. The

evidence is submitted and analysed by the judge while witnesses cannot be questioned similarly

to the adversarial system.

Plea bargaining is "The process whereby the accused and the prosecutor in a criminal case work

out a mutually satisfactory disposition of the case subject to court approval. It usually involves

the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-

count indictment in return for a lighter sentence than that possible for the graver charge."29

Plea bargaining only exist in adversarial systems. Plea bargaining is extremely difficult in

jurisdictions based on civil law. This is because unlike common law systems, civil law systems

have no concept of plea – if the defendant confesses that confession is entered into evidence, but

the prosecution is not absolved of the duty to present a full case. A court may decide that a

defendant is innocent even though they presented a full confession.30

In conclusion, although both trial system sport different methods in dealing with parties

involved, witnesses, evidence, and the proceeding itself, their aim are still the same, that is to

achieve justice.28 http://en.wikipedia.org/wiki/Adversarial_system29 Black’s Law Dictionary30 http://en.wikipedia.org/wiki/Plea_bargain

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Chapter-IV

Examples of Countries practicing Common Law and Civil

Law Legal System

Common Law: Malaysia

Year of practice: 200+ Years (since the first Recorder of the Court of Judicature of Prince of Wales’ Island was appointed by the British)

Notable features:- Practices a dual legal system (syariah Law) but Common law is more widely applied in

cases as Syariah law only applies to the Muslim population. - Lawyers in Malaysia do the double task of being both barristers and solicitors.

Civil Law: Germany

Year of practice: 100+ years (The civil code of Germany, the Bürgerliches Gesetzbuch was in development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project)

Notable features:- In Nazi Germany, there were plans to replace the BGB with a new codification that was

planned to be entitled "Volksgesetzbuch" ("people's code"), which was meant to reflect Nazi ideology better than the liberal spirit of the BGB, but those plans did not become reality.31

- The principle of abstraction is used, whereby having an obligation to transfer of ownership does not make you the owner, but merely gives you the right to demand the transfer of ownership.

31 http://en.wikipedia.org/wiki/B%C3%BCrgerliches_Gesetzbuch

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Legal System in Malaysia

Malaysia is a federation that is comprised of 13 states. Here, we practice parliamentary

democracy. Because of the last colonisation of the country by the British, the legal system

practised here is based on the common law system stemmed from the Westminster model of

Britain. As provided by Article 160 of the Federal Constitution defined law, included that ‘the

common law in so far as it is in operation in the Federation or any part thereof’. English law is

therefore part of Malaysian law.

However, Malaysia does have its own provisions allowing for the Syariah to be one of the laws

practised here32. However, the impact of the Syariah law here is relatively small, having the

limited jurisdiction of imposing fines for an amount not more than RM3000, and imprisonment

to not more than 6 months.

The Federal Constitution is the supreme law of the land. The acts of every organ in the state must

comply with its provisions. In Malaysia, judges, in interpreting the constitution, may adopt either

a literal or a liberal approach. This is a positivist approach that states that judges do not make

laws; they merely interpret or declare it.

The courts in Malaysia are the guardian of fundamental liberties, as envisaged by the Reid

Commission. It gave the courts the right of judicial review and the task of interpreting the

Federal Constitution. The recommendations of the Reid Commission appear as Articles 4, 128,

and 130 of the Federal Constitution.

As for the application of common law in Malaysia, Section 5 of the Criminal Procedure Code

states that English law shall be applied in cases where no specific legislation has been enacted.

Similarly, in the context of civil law, Sections 3 and 5 of the Civil Law Act allows for the

application of English common law, equity rules, and statutes in Malaysian civil cases where no

specific laws have been made.33 In 2007, the then Chief Justice of Malaysia, Ahmad Fairuz

Abdul Halim questioned to need to resort to the English common law despite Malaysia having

already been independent for 50 years.34

32 Article 121(1)(a) of the Federal Constitution33 http://en.wikipedia.org/wiki/Law_of_Malaysia#Common_law34 The Star Malaysia, August 22, 2007.

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In Malaysia, the law is not just found in legislations but also in past decided cases by the courts.

The courts referred here are in the context of the superior courts which are the Federal Court, the

Court of appeal, and The Two High Courts. Only the decisions of these courts are the sources of

law. This is parallel to the concept of stare decisis practised in common law countries. Stare

decisis works in two ways, vertical (A court is bound to follow the decisions of higher courts)

and horizontal (some courts are bound by their own prior decisions of a court of the same level,

whether past or present, if any).

The federal judiciary is 200 years old. The primary function of judges is to ensure a fair trial. In

the adversarial mode of trial under the common law tradition applicable in Malaysia, the judge

acts as a referee, making sure that the rules of evidence and procedure are followed, and deciding

which party wins. Judges have the duty to adjudicate not only disputes between individuals but

also disputes between individuals and the government.

Like the judiciary, the legal profession is of English origin. However, unlike the English legal

system which historically is divided into two separate branches (barristers and solicitors), no

such division exists in the Malaysian legal profession. Malaysian legal practitioners do the work

done by English barristers and solicitors.

In conclusion, though Malaysia has some small but significant deviation from the traditional

practices of common law, it conforms mostly to the accepted and majority of features that most

countries with common law as their legal system. The effectiveness of the Malaysian legal

system is fair, considering its long history of courts, judges, and lawyers. The Malaysian Bar is

also an active component in the mechanics of Malaysian Legal system, appearing in the media

and does not remain silent when there are matters to be dealt with on their part.

There are voices suggesting that it is about time for a Malaysian common law, and some even

want to revolutionise the legal system in Malaysia by replacing it with the Syariah practised in

most Islamic countries. These ideas, though very tantalizing, careful consideration of the

sensitivity of the various races and ethnic groups in Malaysia needs to be taken into account.

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Conclusion

In this assignment, we are addressed to differentiate between the two legal system in a mainly

historical and characteristics basis.

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The main comparative study between two system is that in common law countries, case law – in

the form of published judicial option – is of primary importance, whereas in civil law systems,

codified statutes predominate. But these divisions are not as clear-cut as they might seem. In fact

many countries use a mix of feature from common and civil law systems.

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References:-