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Reply #44: Norway is a "Civil Law" system of justice [View All]

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happyslug Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Nov-30-11 03:46 AM
Response to Reply #41
44. Norway is a "Civil Law" system of justice
The US and Britian follow British Common Law system of Justice. The prosecution and the Defense argue the issue in front of a neutral Judge. Then the Jury decides the facts and the Judge decides the law based on those facts found by the Jury (If no jury, the facts are found by the Judge). Given the prosecution is just one side in a two way fight, the burden on proof is on the prosecution, thus the old line in the Common Law "You are innocent til proven guilty".

European Civil Law (derived from Roman Civil Law of the Roman Empire) system is different. The prosecutor is NOT one side in a two sided argument but the person who first MUST decide if someone is guilty AND based that decision on the evidence gathered. Such evidence is gathered together in what is called "Dossier" (I believe this is the French name for this package of papers, for this is a broad statement as to the Civil Law System NOT the exact legal system used in Norway). Then the prosecutor takes that dossier and present it and his case to a Judge. The Defendant can then challenge that determination of the Prosecutor in front of the Judge. Thus the old saying that under the Civil Law System "You are guilty till you prove yourself innocent".

Notice both systems require a trial but the Civil Law requires that the Prosecutor FIRST make sure it not only has enough evidence to convict someone, but has weighed ALL of the Evidence in the case, including evidence that shows the defendant to be innocent. Once the prosecution has done that, then and only then can a Trial be held (i.e. you are innocent till the prosecutor says there is enough evidence to say you are guilty).

Now, from a practical point of view both ways of doing justice have their good and bad points. One observation of the Civil Law System is that if you are innocent of the crime it is HARDER to be charged with a crime. On the other hand in the Common Law System, it is easier to be charged, it is up to a Judge and Jury to rule you are innocent or not.

I bring this up for what appears to be happening is that the Civil Law rules are coming into play in this case. The police and the prosecution have gathered the evidence and now have to make a decision if the shooter is "guilty" of any crime. One aspect is did the Shooter have the mental capacity to know what he was doing was wrong? If after review of the evidence, it is clear that the shooter did NOT have the mental capacity, the police and prosecutor must rule him insane. They then must take that to court where the Defendant can challenge it.

In the Common Law System the police and prosecutor do NOT have to decide if the evidence shows someone is insane or not, but only have to decide if there is enough evidence to show that he was NOT insane. Notice no decision as to actually insanity has be be made, just that evidence exists to show he was not.

In most cases, the differences between the two system rarely come up. The main reason is that the Modern Civil Law System really came into use in pre-revolutionary France, which had what we would call police and prosecutors.

Under the Common Law, Police and Prosecutors did NOT exist till the mid 1800s. Even after the adoption of Police and Prosecutors, the older system remained, i.e. if someone did a crime against you, you had to arrest the defendant and bring the case yourself (or hire a private attorney to do so). Aspect of this right to bring private criminal complaints survive till this day, through the right to do so for serious crimes have slowly been abolished over the last 100 years or so (Felonies and Misdemeanors are generally reserved to the local prosecutors NOT the Victim or the Victim's family).

Thus the Common Law tradition reflected the fact that more often then not the only neural person in the case was the Judge, who retained the right to make the final decision on the law. In the Civil Law, you had professionals bringing the criminal charges against people, these professionals were neutral (in most cases) in making a decision, but it was a decision NOT reviewed by the Defendant. Once the prosecutor made his decision that someone had done a crime, he took it to a judge who then reviewed the case subject to input from the Defendant AND any lawyer the Defendant would hire to defend him.

Now, with every Common Law Jurisdiction having Police and Prosecutors just like Civil Law Jurisdictions, the difference in treatment of a case is NOT a wide as I made it above. Today there is a tendency for Common Law Prosecutors to do what Civil Law Prosecutors do, weigh the evidence and determine if a crime was done by the Defendant (again do to the fact such prosecutors, even under the Common Law, are neural as the the parties, which was generally NOT the case before Prosecutors were retrofitted onto the common law).

Thus it is rare today in most cases to see a difference in the two system, given the most of the difference between the two systems was based on the lack of neutral professional prosecutors under the Common Law prior to about 1830 while the Civil Law always had such neutral professional prosecutors. On the other hand the traditions of the Common Law did NOT include that such neutral professional prosecutors make any judicial decision as to a case before taking the case to court. The Dossier was what everyone in the Court relied on at trail, but today in the US the Prosecution must turn over ALL evidence to the Defense, including evidence showing the Defendant is innocent (i.e. much like a Dossier).

Just some background on the two system and why it appears Norway is doing what it is doing. The differences between the two systems of law remain, and one aspect of that difference appears to be coming into play in this case.

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