-4

I have seen solicitors and in turn barristers defend people in Common Law jurisdictions, but from my understanding this should be much harder to do in a Civil-legal-system because it is so rigid.

I have friends that have revealed the truth about their careers (most people get off because barristers just confuse people rather than a loop hole in the law).

I personally see no way of defending someone in a Civil-legal-system, unless you can perhaps find another Law where the penalty is a little less serious, which likely would not even be necessary as it all seems so easy to follow.

Just for clarity - it does not have to be a lawyer as I know each country uses a different word, I am focusing on Criminal Law, and only in major countries.

4
  • 1
    By "ridged." do you mean "rigged"? If not, what do you mean? If so, in what way do you think the system "rigged"? Feb 3, 2021 at 1:14
  • I read it as "rigid," but it could go either way.
    – bdb484
    Feb 3, 2021 at 1:45
  • 3
    @user5623335 Re: "most people get off because barristers just confuse people rather than a loop hole in the law". Your friends may not be a truly representative sample to assess the reasons behind certain judicial outcomes. In my experience people "get off" because they are either not guilty of the offence charged, or it cannot be proved to the required standard.
    – Rick
    Feb 3, 2021 at 10:25
  • 2
    I'm not sure what you mean here. Isn't criminal law codified in statutes in most common law jurisdictions nowadays? Are you (just) saying precedent is not relevant in CLS? If we go by Wikipedia "The most pronounced features of civil systems are their legal codes, with concise and broadly applicable texts that typically avoid factually specific scenarios. The short articles in a civil law code deal in generalities and stand in contrast with ordinary statutes, which are often very long and very detailed." So lawyers might have more to do in CLS in that regard since the codes are more abstract?
    – Fizz
    Feb 3, 2021 at 15:41

2 Answers 2

8

People are routinely and almost universally defended by lawyers in serious criminal cases in both civil law country and common law country legal systems. The availability of counsel for the indigent in cases involving petty crimes varies, but not in a way systemically related to the common law v. civil law distinction. It has more to do with the available supply of lawyers.

The lawyer's job isn't very different, despite the fact that the lawyer has an audience of a panel of judges rather than a judge presiding over a decision making jury, although obviously lots of fine details (e.g. concerning the procedures for presenting evidence) are different.

In both cases, defense lawyers call the attention to the facts favorable to the defendant's case, offer up evidence that tends to exonerate the defendant if the lawyer can obtain it, argues to the court regarding how the evidence should be interpreted and what inferences should be drawn from it, and argues regarding any ambiguities in how the law should be applied to these particular facts.

Furthermore, in most criminal cases, in both civil law countries and in common law countries, guilt or innocence is not the primary issue. The primary issue for criminal defense counsel in most cases is assisting the judges in determining the right sentencing option on the right charges for a defendant who pleads guilty or is found guilty at trial of some crime, based upon the character of the crime and offender that is presented to the court by the lawyer. This part of the process is very similar indeed in the two systems.

Typical issues might include an assault case where the issue is whether there was serious bodily injury, justifying a more serious sentence, or mere ordinary bodily injury, justifying only a less serious sentence, in a case where it isn't clear cut at the guilt and innocence phase, or arguing whether probation and a fine, or incarceration is a better fit to a minor offense, in the sentencing phase. It isn't entirely or primarily about "legal loopholes" in any system, although "legal loopholes" tend to be more important in U.S. criminal law than in many legal systems.

There are some places in which civil law courts are more open to consider a defendant's arguments than others (and many civil law countries decide serious criminal cases with a panel that is a mix of legally trained judges and lay jurors), but that can vary wildly from country to country and within a country as well.

6
  • 1
    The Schöffen in Germany are more Lay-Judges than jury, as they help in determining all parts of the verdict
    – Trish
    Feb 3, 2021 at 12:13
  • 1
    @Trish Fair point. The way mixed lay-legally trained panels work in civil law criminal cases varies quite a bit in mode of selection and the role of the parties. Even the lay people are closer to the kind of people who would be an a government advisory board or appointed government board, like zoning commission at the local government level, rather than being a random cross-section of the general public as a U.S. jury is supposed to be subject to slight limitations. The dynamics generally vary by prevailing culture. Identical rules in Germany and S. Korea play out very differently in practice.
    – ohwilleke
    Feb 3, 2021 at 20:19
  • and then there are cases like Japan, which allegedy started out in the German post-napoleon style and grew a lot...
    – Trish
    Feb 3, 2021 at 20:47
  • @Trish Japan and S. Korea have vary similar laws on the books to their European counterparts whose civil codes they borrowed wholesale, but the overlay of Confucian norms resulted in both deviating from the way the European systems operate profoundly in very similar ways. The way the key actors behave is so different that it is transformative, especially in matters of criminal justice. I've had judges from both countries talk to me about how they evaluate evidence and they basically believe that everything the prosecution says is true while defense statements to the contrary are probably lies.
    – ohwilleke
    Feb 4, 2021 at 4:30
  • Confucian Norms are the foundation of pre-industrial Korean values, that I sign wholesale, and as a result, influence the modern society there heavily. But Japan's culture is much more influenced by its unique mix of Zen-Buddhism, Shinto, and general non-religiousness (and what the Shogunate, Meji, Taisho and Showa era brought) - Modern Japan is often put very high on the secular-rational side of things and even in the Tokugawa Shogunate religion wasn't dogmatic or ever Confucian. Taoism and Confucianism are staples of states that claimed the Chinese Mandate of heaven.
    – Trish
    Feb 4, 2021 at 7:19
0

Yes, attorney defense is very much a thing in civil law jurisdictions; so much, that in Mexico, law is the #2 university major with the highest number of licensed professionists.

The main difference between a common law and a civil law attorney is the entry barrier: because studying and interpreting the law is much simpler in civil law systems, there are much more practicing lawyers per capita than in the United States (despite having about 1/3 of the population and about 1/3 of the college graduates per capita, Mexico has almost as much practicing lawyers as the United States, 1.1 million in Mexico vs. 1.3 million up north). However, that doesn't mean legal practice is simple enough to make lawyers redundant in civil law jurisdictions; their role in court procedures is not that different from their role in common law jurisdictions, and in both legal systems a good lawyer can have as much impact on the outcome of a trial.

In addition, despite being much more strict and straightforward than in common law, civil law statutes are still very much open to controversy and interpretation. Right off the top of my head I can name Supreme Court of the United Mexican States Thesis Contradiction Sentence 293/2011, which established how to interpret a constitutional amendment from 2011 that basically made Mexico's approved international treaties part of their constitutional law (tl;dr in matters regarding human rights, if an international treaty provides better human rights protection than the Constitution, it overrides national law).

This, as well as many other doubts regarding interpretation of the law, as well as the simple fact that they are specialists in law, contracts, obligations and the government, are the reason why civil law attorneys are as valuable as their common law counterparts when it comes to legal advise and counseling.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.