Indonesian law as inherited from Dutch law is based upon the Civil Law rather than
the Common Law system. Although in practice the Indonesian system functions poorly
for a variety of reasons, there is no problem per se with either legal tradition.
Still, for expatriates coming from a Common Law country—England, Australia, the
United States, Canada, New Zealand and others derived from British law—features
of Civil Law can create confusion.
The following article gives a brief comparison of Civil Law—also known as Continental
Law or Napoleonic Code Law—and Common Law—also known as British Law.
[Note that the term Civil Law in this sense—as a system of law—is different than
the civil law mentioned earlier which means law regulating relations between
people and institutions including contracts and marriages (hukum perdata
in Indonesia), as contrasted to criminal law (or hukum pidana).]
Read this article if you are interested in the details.
Or skip to
Conclusion if you need only the summary.
Comparing Common Law and Civil Law Traditions in Legal Systems
Introduction
There are several different legal traditions represented in the 20th century world.
Among these are the common law tradition and the civil law tradition. The common
law tradition is the one upon which the judicial system of the United States and
Great Britain are founded on. The civil law tradition, on the other hand, operates
in most of the rest of Western Europe... The different legal traditions recognize
different sources of law and thus prescribe different theories and methods for the
administration of justice...
The tradition of common law recognizes two principle elements, those of custom and
equity. That which a society or culture considers as its custom dictates that nature
of the law in a common law system. An action that the society deems wrong can be
considered a crime without its necessarily having been written down or codified.
Custom makes precedents which in turn become policies. It is from this logic that
the principle of stare decisis comes. The other principle, equity, reflects
the common legal tradition’s sense of fairness in the sense that decisions that
are obviously wrong should not be reached just so that customs can be preserved
(Reichel, 1999, 88-90).
The civil legal tradition... has its roots in the laws of Ancient Rome. The Romans
codified their laws into statutes, issued edicts dictating policy, and had jurists
whose function it was to apply the existing laws on particular cases... The basic
principle of civil law is that of codification. Around the time of Napoleon, it
became a goal of the countries in Western Europe to develop comprehensive codes
of law. While each time a new code of laws was enacted it voided those that existed
before it, the new codes did not gain their legitimacy through their resemblance
to earlier codes, but from their integration and assimilation into the most recent
code. This is different from in common law where the a new code does not nullify
those that came before it but rather enhances and improves it. Where in common law,
law is tied to custom and thus exists by fact, in civil law, law exists because
the authority that is the government has decreed it so (Reichel, 1999, 90-93).
The designations of common and civil law are artificial conventions as opposed to
natural divisions. They are a means to separate and compare the different systems
by grouping together common traits and contrasting them to others. In any justice
system, there are two main components; substantive law and procedural law. Substantive
law, as it relates to criminal justice, dictates what constitutes a crime. As previously
explored, the common law basis for this designation is custom whereas the civil
law one is a written code (Reichel, 1999, 109).
Procedural law deals with the manner or method in which the substantive law is administered.
In common law, the principle of stare decisis ties the process to the basic
tenet of custom. Judges are supposed to make their decisions based on how those
decision have been made in the past. To balance custom with equity, the common law
tradition abides by the principle of particularization in procedural law. Particularization
allows a judge the flexibility to distinguish a specific case by its particular
facts from those previous cases similar to it. In such a way, the judge frees himself
to decide a question based on fairness as opposed to strictly based on custom. This
allows for a judge to avoid being forced to come to an unjust conclusion on a question
so as to preserve the inviolability of custom (Reichel, 1999, 117).
Under the civil law tradition, a judge is supposed to be able to glean from the
law the proper decision through logical deduction. If this is not possible, theoretically,
it is the fault of the judge for not understanding the law properly of the legislature
for not providing the judge with a sufficient legal code. In truth, the civil law
judge cannot always find a specific statute that addresses the particular facts
of the case. This is to be expected seeing as the legislature cannot be expected
to anticipate every possible scenario. While it is the intent of the civil law tradition
to deny judges any ability to “make law,” what happens in practice is that a judge
takes the most applicable statute and then demonstrates in writing how he logically
went from that statute to the facts of the particular case and then arrived at his
decision (Merryman, 1985, 39-45).
From these descriptions of the basic principles of procedural law in the two traditions
comes the more specific adjudicatory processes utilized by each. The common law
tradition employs an adversarial process while the civil law tradition uses an inquisitorial
process. The adversarial process is the one used in the United States. Its origins
are in actual physical battles between two contenders where the thought used to
be that the winner had truth on their side while the loser must have been guilty.
Over time, these battles became highly regulated with procedural rules and eventually
evolved into the process that exists today. The basis of the adversarial system
is that the truth will be exposed through a kind of competition. Procedure often
takes precedence over substance, and so to preserve the purpose of the endeavor,
cross-examination and multiple actors are pillars of the process. Cross-examination
is reminiscent of the sword fighting of old in that it is a hostile process meant
to discredit the opposition. The multiple actors are the prosecuting attorney who
asserts the defendant’s guilt, the defense attorney who asserts the client’s innocence,
and the judge who acts as a referee (Reichel, 1999, 142).
The civil law tradition prefers and inquisitorial process that stands in stark contrast
to the adversarial one. In an inquisitorial proceeding, the judge is not a mere
referee but rather the principle actor. The judge endeavors through his personal
examination of both witnesses and evidence to determine the truth in a case. The
trial itself is much more like a public investigation than the adversarial process’
battle of the attorneys. Trials are meant to be communal efforts at uncovering the
truth, and so, in theory, the defendant is supposed to be cooperative. Guilty pleas
do not prevent a trial but are rather used as additional evidence. Plea bargaining
is not a practice in the civil law tradition because the idea of pleading guilty
to a lesser offense is adverse to the concept of applying the law as it was written;
a central aim in this tradition. A judge allowing plea bargaining would be considered
in the same light as the judge interpreting law as opposed to simply following and
applying it. Attorneys in this tradition do not argue the fact of the case. They
exist to argue before the judge what interpretation of the statute these facts lend
themselves to best (Reichel, 1999, 141, 143).
The original of this article is available HERE.
The Overview of the Indonesian Legal
System by New York University earlier mentioned the implications of Civil
Law to legal decisions.
Doctrine
Doctrine is opinion of law from jurists or legal scholars. Doctrine is applied to
interpret a general conception of law within other legal sources or to provide explanation
on ambiguity of laws. Doctrine in and of itself does not have a binding power. It
will have a binding power when it is used as consideration in a court decision.
It is quite common for litigation cases to supplant their arguments with doctrine
and submitting books of legal scholar pointing to a certain doctrine as evidence
in court.
For research purposes, doctrine can be found in books, papers, or other media for
jurist opinions. Example of notable doctrine is the opinion of J. Satrio, in which
books, papers, and lectures have been a common reference for practitioners in the
field of civil law, and Yahya Harahap, in which writings have been sought as source
of clarifications for both criminal and civil procedural law.
...
Jurisprudence
Court decisions commonly referred to as jurisprudence, or case law, or judge made
law do not have a binding power other than for the persons or parties being subjected
to the decision. This is because Indonesia as a civil law country (which ascribed
to European continental legal system), following the Dutch, does not adopt stare
decisis principle.
Nevertheless, there are two streams of opinion regarding the same decisions made
three times by the Supreme Court or the Constitutional Court. Some jurist classified
this as a permanent precedence under the doctrine of faste jurisprudence which serves
a somewhat binding power. Other jurists on the other hand, still treat such precedence
like any other precedence, i.e., as not having any binding power. They merely have
a persuasive force of precedence.