Final Exam Essay- Comparison of Civil and Common Law Systems; Accountability of Supreme Courts; How

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Graves 1John GravesDr. WilsonCPO 4062July 11, 2014CPO 4062 Final1)The two main types of law utilized around the world, common law and civil law,are very different practices. The former relies on the establishment of precedents andcustoms to create and interpret laws which allows judges to act more as arbiters andgives them greater freedom in creating law. For the latter, judges act as investigatorsthat navigate a system where laws are codified in extreme detail. Although both forms oflaw have their benefits, through the lens of a superior court’s ability to impact andenhance a society’s rights, common law systems prove to be better equipped.One of the best examples of a common law system is in the United States.Although there is a written constitution in the U.S., which is often unheard of for thissystem, the judiciary bases their decisions on former rulings and opinions in the courts.This is why in United States Supreme Court Cases there are detailed explanations thatoutline the opinion of the court, both for the majority and minority votes (Neubauer 463).In these opinions, Supreme Court Justices cite former cases and decisions as theirrationale and go further into their understanding of the law in order to create newprecedent for future cases (Neubauer 462). Because of the emphasis placed on ajudge’s decision, the common law system allows for greater autonomy and law-makingpower, even if it is inherently passive as to how this comes about.
Graves 2Argentina is a country that uses a civil law system. While the rights of its citizenshave been expanded upon in recent years following the 1994 constitution leading thepeople to use legal channels such as habeas data to rectify corruption, constitutionalreview and the expansion of rights that most often follows such a practice is not in highpractice (Smulovitz 174-5). Civil law systems rely much heavier on the citizenry toexamine and take action to protect their rights and has the fundamental downfall oflacking power when they remain ignorant. Argentina did not see any substantialprogress until its citizens began to understand and capture that power (Smulovitz 176).Therefore, this system makes it much easier for an authoritative dictator or regime tohold power over a country, especially when the highest courts lack the ability to trulydictate new law.This is not to say that civil law systems are completely incapable of furtheringhuman rights. Colombia’s creation of their Constitutional Court in 1991 not only gaveway to a rights revolution, but did so through the ground up. Colombia’s citizens becameempowered to challenge the constitutionality of law by pursuing acción de tutelas andhaving increased access through laws that lowered or completely negated all financialcosts for the courts (Espinosa 72-3). However, Colombia’s Constitutional Court is seenby the other branches and lower courts has having the ability to create precedent andchange laws that are followed (Espinosa 89). In this way, Colombia institutes a civil lawsystem that contains attributes of common law which allows it to not only have easyaccess, but also have the power to create law as well.

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Term
Summer
Professor
Dr.Wilson
Tags
Law, Accountability, John Graves

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