Common law vs. continental law: Rules vs. truth

Worldnet – December 29, 2007
The criminal is to go free because the constable has blundered. – Justice Benjamin Cardozo
You’re out of order! You’re out of order! The whole trial is out of order!  – Arthur Kirkland (Al Pacino’s character) movie: “And Justice for All” (1979)
In the movie, “And Justice for All,” Al Pacino’s character is an unrealistic and rather naïve young lawyer who is literally the man the ancient Greek philosopher, Diogenes (412-323 B.C.), spent his entire life looking for in vain – an honest man.
The narrative is about the trials and tribulations of this idealistic and upstanding lawyer in the midst of a perverse society and a corrupt legal system. In one scene, Pacino’s law partner is shipped off to the insane asylum because a client he successfully defended for murdering a child later killed two more children.
Pacino’s utopian worldview is slowly crashing in on him. The final straw occurs when Pacino’s character is compelled to defend an arrogant, corrupt judge who is obviously guilty of numerous criminal charges including fraud, bribery and multiple counts of sexual battery against a woman.
At trial, just before Pacino’s opening argument, his client leans over to Pacino’s ear as he looks over his shoulder at the woman victim he so unmercifully abused and uttered the vilest blasphemy – “That’s an attractive woman; I’d like to have her again!”
Pacino could take no more. Would Pacino now cross the Rubicon? If so, he could never turn back again. A defense attorney usually spends his opening argument defending his client, however, Pacino now understands is completely guilty, therefore he becomes a zealous prosecutor against his own client by telling the judge and a shocked courtroom audience basically – my client is a pig! Pandemonium ensues as bailiffs drag Pacino out of the courtroom. His last words were memorable – Hold it! Hold it! I’ve just completed my opening statement!
This brings me to the thesis of this article – why did they drag Pacino out of the courtroom? Did he do anything wrong? Was he supposed to zealously defend his client, or justice and truth? Under the Anglo-American/common law system of jurisprudence, especially over the past 100 years, rules trump the truth. However, in this article I would like to explore the continental (civil or European) legal system of jurisprudence which I argue by design usually chooses to defend justice which is veritas (truth).
The main difference usually drawn between the two systems is that common law draws abstract rules from specific cases, whereas civil law starts with abstract rules, which judges must then apply to the various cases before them. For example, the Warren court (1953-69) and the Burger court (1969-85), made up out of whole cloth a plethora of criminal defenses from two abstract rules: 1) the exclusionary rule; 2) the incorporation doctrine, whereby portions of the U.S. Bill of Rights are applied to the states through the due process clause of the Fourteenth Amendment.
Below are some of the most infamous cases from this era:

  • Mapp v. Ohio (1961), Decided that evidence obtained in violation of the Fourth Amendment protection against “unreasonable searches and seizures” may not be used in criminal prosecutions in state courts, as well as federal courts.
  • Gideon v. Wainwright (1963), Required that all felons (including the indigent) be given their Sixth Amendment right to legal counsel.
  • Miranda v. Arizona (1966) The court held that criminal suspects must be informed of their right to consult with an attorney and of their right against self-incrimination prior to questioning by police.
  • Swann v. Charlotte-Mecklenburg Board of Education (1971) Supporting busing to reduce de facto racial segregation in schools.
  • In United States v. U.S. District Court (1972) the Burger court issued another unanimous ruling against the Nixon administration’s desire to invalidate the need for a search warrant and the requirements of the Fourth Amendment to the United States Constitution in cases of domestic surveillance.
  • In Furman v. Georgia (1972) the court, in a 5-4 decision, invalidated all death penalty laws then in force.
  • Roe v. Wade (1973), Burger voted with the majority to recognize a broad right to privacy that prohibited states from banning all abortions.

These and many other cases from this period have thoroughly perverted the rule of law and the original intent of the Constitution’s framers, plunging American law, culture and society into our present state of chaos.
Under the Anglo-American and common-law jurisprudence this rigid, illogical adherence to “rules,” if broken anywhere during the trial, can, in effect, have key evidence withheld from the jury causing a mistrial, and the prosecutor will either have to start anew or perhaps, because of financial constraints, allow the criminal to go free. Mapp, Gideon and Miranda all have a built-in exclusionary rule. On this point, Supreme Court Justice Benjamin Cardozo once cynically remarked in a famous opinion – “The criminal is to go free because the constable [police] has blundered.” The other cases cited above have no legitimate constitutional foundation outside of the judge-created incorporation doctrine.
However, under the continental system of jurisprudence (also in England) you have the lord (judge), solicitor (prosecutor) and the barrister (defense attorney). The only concern of the court is not merely strictly following procedure (rules), but determining veritas (truth).
Regrettably, judges in America are supposed to be “neutral and detached,” which in my opinion likens the judge to a referee or a neutered dog. However, judges under the continental legal system in Europe are engaging, dynamic, Socratic, independent, probing and powerful judges who actively participate in discovering the truth and also can cross-examine witnesses for himself. Ironically, at the Court of Appeals and Supreme Court levels they follow a modified continental legal system – firing questions at the attorneys on both sides of the issue in an effort to get at the truth. Why not adopt this European system at all levels in our American courts?
The standard division to be made between the two systems is that the common law system is case-centered and thus judge-centered, allowing room for an agile, pragmatic approach to the particular problems that appear before the courts. The law can be developed on a case-by-case basis. Conversely, the civil law system tends to be a codified body of general abstract principles (truth, justice, equality under law) which manage the exercise of judicial discretion.
Following the continental system of jurisprudence would remedy these deficits cited above. How? Because the law’s primary purpose should not be to legalistically follow a case-driven, judge-centered template, not the rules of evidence, not politics, liberalism, conservatism, feminism, humanism, secularism, positivism, pragmatism or any other “ism”… but justice, equality under law and veritas – truth.
Ellis Washington, former editor at The Michigan Law Review and law clerk at The Rutherford Institute, is a graduate of John Marshall Law School and a lecturer and freelance writer on constitutional law, legal history, political philosophy and critical race theory. He has written over a dozen law review articles and several books, including “The Inseparability of Law and Morality: The Constitution, Natural Law and the Rule of Law” (2002). See his law review article “Reply to Judge Richard Posner.” Washington has just completed the manuscript to his latest book, “The Nuremberg Trials: Last Tragedy of the Holocaust” (2008

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