Different World Legal System Homework Essay Sample

In most of the nations around the world, two fundamental legal systems prevail, namely the civil law system and the common law system or we can say, they are legal systems that are more or less derived from these two. The common law system is also called ‘judge-made’ law and is a more flexible, less prescriptive system that prioritizes published judicial opinions of the past and then hearings are designed based on some principles. Basically the courts followed past cases and opinions and applied them in their current cases. Termed as ‘historical accident’, this system’s origin is said to be from Britain’s invasion by Normans in early 17th century.

Civil law, on the other hand stems from early Roman Empire and then its practice spread through European nations. In case of civil law system, it is codified statutes that predominate. Here, the judge’s role is no more than that of an investigator, where charges are evaluated and facts are considered to reach the verdict which is found in legal codes. In shaping this system, the fundamental issue that was kept in consideration was the positioning of the judge in relation to statute. It is a compilation by Roman Emperor Justinian of codes of law.

The French code civil is considered very intellectual and successful codification of law and therefore we can find its significant influence on the legal structures of so many other countries.In this essay we will highlight certain characteristics and general attributes of the English common law system and the French civil law system and draw a comparison between them. By doing so, we shall be able to have better understanding of the similarities, differences, merits, demerits of different aspects in these two legal systems. More detailed knowledge or close observation makes it clear that there is no pinpoint distinguishing feature between civil and common law. Some aspects that are in fact distinctive and set out the differences in the systems will be discussed.

Source of law: where we often argue that common law is just “judge made” and civil law is codified law, it is not entirely correct. Codified laws are also present in common law nations. They are result of legislative process and have to be taken into account in judgments while also considering existing judge-made precedents. What we have got to notice is that, in both legal systems, codes do exist and are put into practice but there is a difference in style. Codes and statutes basically provide statements of principle and do not define much in civil system. Whereas, common law codifying statutes define in more detail, the rules that set out situations and conditions of specific application or exception.Principle of precedents: In the common law system, the primary concern for judges is the doctrine of Stare decisis, which means they are bound by precedents rendered by higher courts. Stare decisis refer to ‘Stare decisis et non quieta movere’ i.e.: Stick to the decision.

For example, in Donoghue v Stevenson [1932] AC 562, court decided manufacturer was responsible for the care of the consumer of the product. This was followed in Grant v Australian Knitting Mills [1936] AC 85. Similarly, the decision inShaw v DPP [1962] AC 220 was followed in Knuller vDPP [1973] AC 435. In addition, there exist persuasive precedents ‘obiter dicta’, for example, R v Howe & Bannister, followed by R v Gotts [1992] AC 412. The decision of a higher court can overrule the binding of the precedent or can be reconsidered if overridden through a statute. However, binding of a precedent is not applicablewhen the current case and the precedent case are dissimilar or if the decision is similar irrespective of the different factsof the cases. Moreover, it also includes an exception which does not involve any references or relevant statutes forbinding to precedent and judgment is decided per incuriamreferring to ‘through want of care’. Also, this exception is not seen as a precedent to follow in future cases.

Common law is more malleable than statutory law and gradual over a decade or more, which means the law can change but without a sharp break. In case of civil law, while it’s true that Stare decisis is not applied in civil law system, precedents do have a convincing role in reaching a decision. Courts do have to consider to some extent being bound by decisions of higher courts. Anyways, the countries of the European Union are bounded by law to the decision of European Court of Justice. More appropriately put, precedents act as persuasive factors. When the similarity with the previous case is certain up to a level, courts do lightly consider past decisions. In some sense we can say, a trend is followed. Civil law system has come under criticism for its instability and uncertainty in some areas of law even though significant importance is given to certainty and stability. It is believed that the lack of stare decisis among other things, such as political unrest and faults in separation of power are the major causes for this instability.Method of deciding cases: The prime idea of common law is ‘case by case reasoning’. Decision is reached by taking historical data, facts and built opinions about everything related to the current case. There is no pre determination of how to solve the problem before the problem appears. Existence of a statute and clear text means straight abiding by the provisions but sometimes doubt and uncertainty will make the statute inapplicable. That is when the judge will look back into previous decisions. Civil law judges first search the legislation for the respective principle and draw out the rules for it. The prime idea is to make right of things that have gone wrong and putting the victim in a place where he would’ve been if the damage didn’t happen. As seen in cases, Lim Poh Choo V Camden and Islington Health Authority [1979], Rees V Darlington Memorial Hospital NHS Trust [2003].

Then facts regarding the case are considered and rules applied. The reasoning process is to go from general principal to special case. It doesn’t mean common law judges don’t discuss general principles or that civil law judges don’t consider previous cases. They do it with a difference in approach and difference in point of view even if the situations are quite similar.Legislation: General principles don’t make up statutes in common law. Rules are constructed that are designed for controlling situations defined in details whereas civil law sees legislation as the most important source of law. In fact, when a case arises with a new situation, civil law judges search in the legislative texts and the specific principles so that they can relate to as much as possible and on the basis of that, come to the new decision.

Appointment of judges:

In England and Wales, in fact in most common law nations, judges play a very vital role as they are burdened with designing the law. Therefore judges are recruited from immensely experienced lawyers, especially when it comes to judges of higher courts. In France, it is possible to see freshly graduated, young and skilled lawyers appointed as judges in lower courts with no previous experience. Normally most do get a year or two of experience working in chamber with a few experienced judges before being appointed in court.Other comparisons: International commercial arbitration is a point where both legal systems converge. Generally, both parties here opt for private arbitrator as it saves time, money and maintains confidentiality. One more point of intersection between two systems is UNIDROIT Principles of International Commercial Contracts.

A difference between common law system and civil law system is the approach towards foreign law recognition. In common law courts, it is the parties that will be responsible in proving a foreign law to the court and if they fail to do so, the domestic law will be considered. On the other hand, civil law judges have the responsibility of finding the foreign law and then appropriately applying it and the principle underlying it is ‘iura novit curia’ which means the judge knows the law. Comparisons can be drawn on the method of questioning between the two systems as well. In common law system, attorneys from both parties can carry out ‘cross examination’ on the witnesses. Generally own witness is questioned first and then it is opposition attorney’s turn to question. In civil law, the judges collect evidence by asking questions to the witnesses. The attorneys do get the chance to raise additional questions.Writings of legal scholars have little or no effect on decisions in common law whereas in some civil law jurisdictions they are of massive importance.

To conclude, we can say that even though the two systems have completely different way of operating or are of opposite extremes, they have made some movements towards each other due to similar social, economical and technical conditions that led to finding similar solutions. Each of the systems has its own individuality and both have been successful in serving well and satisfying social and economical needs of the changing society. They provide a great balance between stability, security and flexibility, adaptability.  One very distinctive legal system prevails in the People’s Republic of China (PRC). Although in theory it is civil law,functionally it is a mixture of civil law and socialist law.From an ideological point of view, this legal order is completely new. It took shape after the communist party came to power defeating the KMT government in 1949.Influences from traditional beliefs and thoughts are evident and form distinct features. Marxism and Leninism form the basis on which the existing legal framework stands.

Over the years, The Chinese legal system has established many civil and private laws in legislation and indulged in judicial practices that abide by something that is additional to thetraditional civil law, to maintain the social and economic status of the country. New litigations and provisions on causes of civil law actions were introduced in Supreme people’s court, out of which many lacked clarity and understanding. During this transition, the Chinese government faced many civil disputes and social conflicts which led to the codification of civil law in china. It is important to understand why Chinese legal system opted to lean towards the civil system in the first place.

The Chinese legal system could not adopt the common law system due to unfamiliarity with the case laws. And it was important for the Chinese legal system to consider its traditional Chinese legal heritage and local legal resources for future development of the constitution. The Chinese legal tradition acknowledged the acquisition of Civil law tradition because of its historical roots in dynasties like ‘Jiuzhanglv(九章律)’ of the Han Dynasty (汉朝) and the ‘Tanglvshuyi(唐律疏议)’ of the Tang Dynasty(唐朝)as they had exclusive set of codes that resembles to one of the main features of civil law tradition. Likewise, China started importing the foreign laws into the system which is evident in the reformation period of Qing Dynasty.Hence, acquiring the civil law system was easier for china in modernizing the legal system. Even the recent enacted codes are based on civil law models influenced by European system especially Swiss and German civil system that lead to the settlement of Chinese civil Code.

This essay will provide an understanding of the historical development of the Chinese legal system and in doing so; will outline similarities and differences from a typical civil law system.Influence of Chinese traditional law: One of the most important reasons why the legal system is not considered as a ‘pure’ civil law system is because it contains some key Chinese characteristics. One of them is the influence of Chinese tradition. The Chinese legal culture was influenced by Confucianism that emphasizes on moral principles and humanism. They preferred Morals over legal codes as they believed that the legal system cannot be restricted only to harsh punishments and strict laws. They considered moral principles and moral conventions in analyzing the legislation and adjudication of law as they thought; moral persuasion assisted by laws and punishment is the best way to prevent social disputes in society. Apart from this, adjudication of disputes was settled through mediation.

The Confucianists aimed to avoid lawsuits and deal the arguments with ‘harmony’, which is placed above all laws in adjudicating disputes and believed to have the highest value in Chinese legal culture. The ancient Chinese legal system is a combination of heavenly orders, legal codes and human relationships where morally upright judges and government officials were seen as role models. As far as humanism is concerned in liberalizing the legal system, leniency towards the weak and disabled, towards women and children, towards those who surrender and cooperate with the law enforcement, also proper evaluation before the execution of the death penalty, all these regimes are adopted from different dynasties during different times to modernize the legal system.

General Principle of Civil Law:

Before the founding of People’s Republic of China in 1949, the civil law that existed was heavily influenced by German style. In 1986, a law was passed, General Principles of Civil Law that saw the re-drafting of general parts of the civil code. This resulted in an adoption of style heavily influenced by ideas on Civil law from the former Soviet Union. The general principles have been considered in high regards by many scholars and countries because of its distinctive lay out. While in one chapter, there was a display of basic civil law principles, in other chapter there was civil liabilities.

Political leadership:

When we talk about the legal system of PRC, the status of Chinese Communist Party (CPP) is a strange yet, unfortunately a very important factor. This is due to the unity of the party and the law and even on this date this unity exists without any need to conceal it. Unlike other civil law nations, china’s constitution states clearly of a democratic dictatorship. The CCP is the only existing political party without any real opposition and beholds the power to control and to supervise all sorts of legal development within the country. The judicial system is not independent from the power of CCP, neither is the military. In fact, the CCP has the power to review and make amendments in the Constitution. This kind of power to political leadership is very rare in a typical civil system.

Influence of common law:

there has been a recent trend of using ‘guiding cases’ in order to achieve greater adjudicative consistency across lower courts. This has brought widespread criticism as some argued it to be the likes of ‘stare decisis’ like authority and anticipated China’s civil law system to come somewhere close to Anglo-American common law system. Hong Kong adopted the British style common law over a century and half of British colonial rule and this, over time had a major influence in the legal system of PRC.

Separation of powers:

This model divides the government in to branches that are independent and that prevent over concentration of power of any one single branch. Typically there are three branches, legislature, an executive and a judiciary. In some nations executives and legislatures are unified. In china, the government is designed based on unity of powers, so they are not three independent parties collectively but exist as one unified whole. This was a move of the CPP to hold ultimate power and they have prevented calls for separation of powers. The bridge drawn between party and state is incomprehensible in most democracies and is significant when it comes to the issues of adjudication.

Socialism:

The ideology of Socialism had reached its peak during Mao’s era and only the economic reform could change the perspective of china towards the social beliefs. In 1993, the system of planned economy was eliminated due to its transition to a market economy. As far as Socialist effects are seen, primitively there only existed the concept of ‘public ownership’ but recently ‘private ownership’ is recognized and have started to change the economical status of the country. We can conclude, after assessing the position of the Chinese legal system in respect to a typical civil law system that China has muddled through for a long time without a civil code. But it’s also true that China’s recent initiatives to come out from the aspects of their legal system that took them backward in the face of economic and social modernization, have met some success. These changes display a shift towards a more typical westernized tradition, a proper civil code to be precise. The plan is that Civil Code will replace the existing General Principle of Civil Law, the Rules and other civil regulation.

Reality TV Shows Cause Dangerous Stereotype

Do reality television shows cause dangerous stereotypes? It is mostly agreed that reality tv promotes dangerous stereotypes. The producers goals are not things like education, but entertainment purposes. The new generation of reality television celebrity stars don’t thrive on talent, but use sensationalism to always be in the news, and some mothers are concerned that teenages may be lead the same way as what they see people doing and how they are handling certain situations on tv.

The first point as to why reality television causes dangerous stereotypes is that producers goals are not to educate, but to entertain. . All the producers care about is providing entertainment, and yes, at some points that is okay. The thing is, reality tv impacts the younger generation with an idea on how to act and what is right and wrong. In my opinion, however, those shows are usually all about drama and none of the people casted in the show at that point actually act respectfully or smartly. An article written on Oregon State’s website has a chart of what age groups most to least enjoy reality tv. Sixty-eight percent of people from the age eighteen to twenty-nine say they like or love watching reality tv, and thirty-two percent of people over the age of sixty-five say that they either like or love reality television. The statistics show that as the ages of the people who were polled went up, the percentage of people who liked or loved reality tv went down. On top of the fact that producers could care less about education, it also seems that they could also care less about how others see the south.”Here Comes Honey Boo Boo”, a show based in McIntyre, Georgia, shows people of the south as people who are disrespectul to their mommas and get everything they want. That is not at all how it works, and some people in the south saw it as rude and criticizing. However, there are also good points to reality television.

The producers of reality tv shows that show mental illnesses have actually found people who have learned more about their own mental illness or even found out about their illness through seeing what a certain person on the show goes through. While it is grand that the person can get help and have help knowing that they aren’t the only person in the world that is going through these issues, reality television is still not necessarily a good thing. It causes stereotypes that southerners are disrespectful and dumb, that girls should look a certain way, and that it is okay to not be yourself.

Next, the new generation of reality tv celebrity stars does not thrive on talent but on sensationalism and desire to always be in the news. “Keeping Up With The Kardashians” proves this point by being all about the family and their drama. “A peek inside the exploits and privileged private lives of the blended Kardashian-Jenner family, including sisters Kim, Kourtney, Khloé, Kendall and Kylie.” is what the famous site IMDb says that the show is about. Basically, about bragging that they are rich and famous, and at that causing more drama to make them even more rich and famous, especially with people tuning in just to watch them be ridiculous and argue with each other on topics that should definitely only be kept inside the family and the house. Not on camera. Though these people also address several social issues, such as poverty and lack of education, and do provide certain amounts of money to charity, it’s very rare that you do see people on a stage standing up for what they believe in.

Lastly, some people are concerned that teenagers may be lead to be or act the same way that the people they see on reality tv. “Dr. Phil”, a talk show where Phil McGraw talks through people’s problems and tries to help them in front of a live audience, had a girl by the name of Danielle Bregoli who had said the phrase “Catch me outside, howbow dah?” and that caught attention of not only teens, but parents and celebrities.

On Trade Moms On Main website, there is an article about the top ten best and worst celebrity role models. People like Miley Cyrus, The Kardashians, Justin Bieber, and reality tv stars are all featured on the “top ten worst role models” list in parents books. Their reason why reality tv stars are number eight? “They promote an unrealistic example of ‘real life’. We now think that living life is reason enough to be famous, and that anyone could be famous. It devalues living a simple, good life. Most are very money hungry. Very few reality stars are portrayed doing anything good for others. Children need to be inspired and encouraged to make a difference.” People like Katy Perry, who encourages girls to be themselves, Taylor Swift, who shows morals Justin Timberlake, who works hard for what he gets, and Lebron James, who has good work ethic, are all people that parents would happily approve of their kids looking up to and trying to be like them. Though we are very much aware that it does interest people to see how other people take certain situations. As people, we may want to know what the best way to react to situations that we are put in is, and so we look for other people who have similar situations, and that may be in a reality television show. Yes, it is entertaining to see how a brand new mom may handle her baby’s dirty diaper when she has never changed a diaper before, but do we ever look and see how much pressure these people are under? Maybe that’s why people are always ranting and raving about things that the audience really should never know. The next time you go to a reality tv show to see how to handle a situation, maybe you should think about how you would feel with all that pressure of knowing that you might be doing something totally embarrassing or wrong in front of the reality television loving world.

In a word, reality television does cause dangerous stereotypes by the producers caring only for the entertainment purposes of the world, the generation of stars that are on tv are only striving for sensationalism and being on the news, and people are actually concerned about how their children will turn out growing up with these types of people as so called “ idols.” Even though the fact that the mental illness shows can help people discover their illness or help people with not feeling alone, the celebrities address numerous social issues, and it interests people to see how others would react in certain situations, I still stand strong on my theory that reality television shows are dangerous and cause dangerous stereotypes.

Reality Television: A Silent Epidemic Contorting The Human Values

Since 1927 when the black and white television was born, almost 99% of households in America own a television set today with 66% of these homes owning three or more TV sets (TV-Free America, AC Nielsen, Co. n.p.). Since then, various types of shows that aim to inform, educate, document, entice, empathize and entertain viewers have been introduced. With the arrival of reality shows, local television imbibes its viewers with a new wave of destructive and suggestive satires that pose as entertainment, reality-mirror shows and induce a subliminal desire for material wealth, unneeded physical improvements and worldly ventures.

According to an AC Neilsen, Co. research compiled by TV-Free America, an American household spends more than four hours of watching the television every given day while an average undergraduate student spends around 10% (179.93 minutes per week) of this time watching reality shows (Leon et al., n.p.). Although reality shows are viewed by every age group, they are most liked by the younger generation. They absorb much more than just information, jokes, language, music, sexual preference and lifestyle. However, they are more exposed to wrong values and virtues that they often claim to be right, cool and practical. Experts from the TV Free America movement and the Australian Early Childhood Association found out that exposure of young generation to violence in television is massively increasing. Children are often forced to watch TV as parents utilize it as a makeshift babysitter or a decoy nanny. The study also proves that even kids show can depict violence and elicit a response that is quite similar to that of post-traumatic stress. This fact is evident in reality television where young viewers are most affected because they have not yet formed their values. As exposure to violence causes harm to the unknowing mind of a child, so have these so-called reality shows impacted its older avid viewers.

Previous reality shows in the contest format featured contestants who would lie, cheat or criticize other contestants to win and get more airtime. Sometimes, the mentality that “winning is everything” becomes a mantra that propels the contestants to succeed even if it means backing out on an alliance, taking back a promise, or betraying a friend, a comrade and a long-time lover. Cash seems to be a driving force that conquers and overpowers fears and limitations (such as Fear Factor), the need for sleep (Shattered), hunger and friendship (such as Survivor), love, morals, and values (such as Joe Millionaire) – all in the spirit of the game. On the other hand, reality shows of the talent/ game show format that require viewer votes and allow the count to decide who wins or not do not guarantee that contestants with excellent skill and talent will bring home the prize. For these types of shows, it is never a level playing field.

Reality shows in the format of body and self-improvement are equally sensationalized and have a tremendous effect on the way most people value their physical bodies over their mental, social and spiritual disposition. A comparison of the impact of a reality TV cosmetic surgery program and a reality TV home improvement program show that although self-improvement shows promote an increasing desire to better physical appearance and increasing the person’s confidence in her ability to do so, this does not necessarily result in improved well-being and increased positive physical outlook. Instead, according to the recent study done by Mazzeo and colleagues (390-7), it contributes to reinforcing the “thin is beautiful” concept and the idea that physical beauty and how others perceive you is vital for better self-confidence. They add that, based on this survey, cosmetic surgery/ makeover reality programs have affected some females to have behavioral eating disorders and incur a negative outlook of her body as a result of internalizing this misleading beauty concept.

Reality dating shows also become a significant source of sexual information of the younger generation. Increased ratings of these types of shows have resulted in a 1000-fold increase in the number of these types of programs from 1997 to 2004. The danger lies from the fact that these types of programs are not just “sexually oriented but that they provide constricting and often negative messages about dating and relationships.” These shows have affected this generation’s attitude towards sex, sexual behavior, and socialization. They have created misconceptions about adult relationships (Zurbriggen and Morgan, n.p.).

Improper and untimely exposure of the young generation to cosmetic and plastic surgery reality television shows have also affected and transformed into a culture of physical beauty driven individuals that focus more on the outcome of an operation rather than on risks and reasons why they should have the procedure. Studies also prove that four out of five persons who seek physical improvement and augmentation by cosmetic surgery are intensive viewers of these kinds of shows and have been influenced by the television to pursue the procedure (Crocket et al., 316-24). The researchers add that the awareness, perception, and knowledge of the patient on the type of reconstruction to be made as well as his or her decision-making capabilities is also affected by the reality television show. At least fifty-seven percent of individuals surveyed in this study who seek surgery enhancements for their bodies are avid viewers of cosmetic surgery reality television shows. Most patients also believe that they are more educated in cosmetic surgery operations and consider plastic surgery reality television to be more parallel to real life because of watching these types of reality television shows.

Other reality shows of a similar medical format to plastic surgery reality show themes have also elicited fears in normal patients who are undergoing similar operations as the “characters” in the reality show. Lothian and Grauer (vi-viii) have observed that television shows portraying real-life births have elicited fears and increased additional concerns on childbirth to expectant parents through the years. In addition to the spills that add suspense to the show but fear of pregnant mothers, the programs often focus on high-risk pregnancies and the medical mishaps that occur during childbirth. Also, constant exposure of pregnant subjects to camera lights and glare may also pose harmful effects.

Other forms of reality TV shows such as documentary soap, dating, prank, celebrity reality, talk shows, sports and talent game shows, celebrity talent game shows, clinical/ medical reality programs, and others have a broad-spectrum influence that continues to rise as more sensationalized and new concepts for reality shows emerge. However, as stressed by Leon et al. (n.p.), despite criticisms, no rules can be applied for censorship or regulation of reality shows because of its broad category and nil presence of violence and pornography, which are usually grounds for restriction. Besides, these shows pose “no clear-cut anti-social immoral dimension” because it simply depicts human behavior. As aptly put by Leon et al., “Reality shows intention is not to inform or to educate (like news) or to persuade or influence (like political advertisements), and do not necessarily or instinctively evoke negative feelings in subjects when used by researchers as a stimulus as media violence, pornography, or death metal lyrics do. Because reality television is generally seen as lowbrow but innocuous, the question of what types of perceptual gaps it produces may point to the difficulty of locating entertainment media”.

The “reality” of these types of programs has also garnered attention. Certain issues that arise construe that “reality programming is the production of a ‘reality effect,’ rather than realism itself.” Certain imagery, camera, editing techniques, and even unrealistic timescales present a different and even exaggerated picture to the viewer that may twist his understanding of the facts about the “reality” being presented (Leon et al., n.p.). Some settings of reality TV shows are also real but atypical and made worse by staged situations which are often programmed by the producer and are therefore scripted or planted. Otherwise, these shows would be boring and senseless.

Reality TV bets its fame on real-life emotions of people who are placed in an uncommon but “real” situation that may bring out the best or worst in him. It is a game that plays with the emotions of people who, too many viewers, are “little” celebrities that they mimic and admire. Zurbriggen and Morgan (n.p.) reiterate that the effect of reality television is summarized by the cultivation theory which proposes that as viewers watch more programs carrying the lucid portrayals of staged “reality,” they cultivate the message that is relayed to them and adapt it to be true. Thus, reality shows should be made accountable for the values that they transmit especially to their young viewers. And although these shows depict human reactions to unusual but real stimuli, a consensus regarding censorship should be studied to prevent the spread of a secular culture that portrays life as a game to be won against all the odds.