Comparative Law 101: Roman law v Common law and Julian Assange.

By skepticlawyer

I wrote a long comment on a lengthy LP thread concerning the Wikileaks brouhaha earlier. I wrote it because there is a great deal of what seems to be willful misunderstanding of the differences between Roman law and Common law jurisdictions. I have reposted it below. Originally I was going to do a detailed analysis of the relevant provisions of the Swedish penal code when it comes to the Julian Assange matter soon to be before Swedish courts.

In the end, I did not, because I think it is inappropriate to do so.

By way of background, I am in the middle of completing a conversion course from the common law to the civil (Roman) law system at the University of Edinburgh, so that I can practice as an advocate (barrister) in Scottish courts. My common law qualifications are from the Universities of Queensland (Aust) and Oxford (England). My home jurisdiction is now Scotland (a ‘mixed’ jurisdiction, in that the substantive law is Roman but the procedural [adjectival] law is common law and adversarial). Most Roman law jurisdictions (including Sweden) use the inquisitorial procedure.

I use the phrase ‘Roman law’ because ‘civil law’ has a number of different meanings. Apologies to any civilians reading this, but I do think this makes my explanations clearer. Even Scotland’s circumstances are not very revealing; the ancient Romans used adversarial procedure, much like we do at common law (think ‘Rumpole of the Bailey’ in togas).

Roman law does not have analogous views to the common law when it comes to discussion of matters considered sub judice. However, in this area, I think the Common lawyers are right and the Roman lawyers are wrong, so I will not speculate as to the quality of the Swedish Crown case against Assange. Too much of that has been happening already. Instead, the below (extremely potted) material will give readers some very basic information as to why what the Swedes are doing seems so wrong.

In reality, it’s not wrong, just different, so before you accuse the Stockholm CPS of being innocent until proven Swedish, do bear the following in mind:

Very roughly, there are two legal systems on the planet that are (a) proper legal systems with genuine due process that (b) weigh evidence on its merits, not on who is giving the evidence. I exclude Shariah because it weighs men’s and women’s evidence differently, something neither the English nor the Romans ever did. Using HLA Hart’s metric outlined in The Concept of Law, this differential evidence weighting means that Shariah is not a legal system, despite pretensions to the contrary.

This leaves us with Roman law and Common law.

Australia, the United States and England (obvs) are both (a) common law and (b) adversarial. Scotland is (a) Roman law and (b) adversarial. Sri Lanka is (a) common law but (b) inquisitorial.

As a general rule, however, common law is to adversarial procedure as Roman law is to inquisitorial procedure. The Continent is (a) Roman law and (b) inquisitorial. The inquisitorial procedure, however, is not something the Ancient Romans developed. It is derived from Canon law — but European Canon law, not English Canon law. English Canon law turned into the equitable jurisdiction (derived from the best bits of Christianity). Roman law systems (including Scotland) have no equitable jurisdiction (which stands to reason; all the Roman jurists who matter being pagans).

I should also mention that Scotland and Scandinavia (including Sweden) also make use of both Celtic and Viking customary law, in addition to pagan Roman law.

Are you beginning to appreciate how complicated this is now?

In the interim, here are a few basic bits of info about Roman law and Common law that may be helpful when you’re thinking about the Assange case (about which I will not speculate, being originally trained in the common law and all).

1. Both Roman law and Common law are intensely mercantile and fundamentally capitalist, but the Roman system is more pro-market; Roman society, being pagan, didn’t have any issues with usury and egregiously unequal contracts. It’s possible to have an enforceable promise (nudum pactum) in Roman law, for example; at common law ‘consideration’ is required. Roman law treats personalty (‘moveables’) and realty (‘immovables’) as simple instances of things (‘re‘). Apart from a requirement for writing, there is essentially no difference between buying a car (chariot tee hee) or house (‘domus‘) under Roman law.

2. Despite the capitalist character of Roman law, the primary economic unit in Roman law is the family (‘familia‘). At common law, it was (and is) the individual. Linked to the importance of the family, a woman’s status was unusually high. She retained full rights to ownership and management of property even after marriage, and Roman law expressly prohibited attempts by her husband or partner to interfere with her property. In modern terms, the idea of a woman needing her husband’s permission to open a bank account would have freaked out every Roman jurist after the 2nd century BC and before the rise of Christianity.

3. The Roman family at its best resembled My Big Fat Greek Wedding. At its worst it resembled The Godfather. The Romans recognised this, which is why they developed huge protections for witnesses, and relatively fewer protections for the accused (called the ‘suspect’). Early Roman procedure allowed the suspect’s character to be attacked without limit (called the ‘vituperatio’), but allowed witnesses to give their evidence – if necessary – anonymously. There was (and is) no ‘right of confrontation’ in Roman law systems. Accused rapists cross-examining witnesses was (and is) anathema at Roman law.

4. This witness protection extended to citizen women making an allegation of rape: it was always a crime against the person in Roman law, never a tort (delict in Latin) permitting the apportioning of liability (one never sees a ‘she asked for it’ argument from any Roman jurist).

5. In many Roman law jurisdictions, the law with respect to rape follows the Roman jurist Ulpian (2nd century AD). Ulpian pointed out how difficult it is to ‘prove a negative’, so while he makes strong arguments in favour of the presumption of innocence, he argues that when someone has to prove a negative (‘I didn’t do …’), he should only have to do it once. At Roman law in the classical period (ie, before the rise of Christianity), this meant a woman only had to prove that she didn’t consent (beyond reasonable doubt). She didn’t have to prove that her attacker didn’t know she didn’t consent (beyond reasonable doubt). That, according to Ulpian, was too much. This has particular import when it comes to women raped while unconscious. His summarizing comment was ‘ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit’.

6. The Roman law jurisdictions (including Sweden), once they dispensed with canon law (and Christianity’s influence on family law more generally) tended to revert to Classical Roman law with respect to marriage, divorce and rape. Marriage was ‘free’, divorce was unilateral and no fault… and the law with respect to rape followed Ulpian.

7. Ulpian thought some forms of rape were more serious than others, especially if spousal or by a family member, as this involved a betrayal of trust, undermining the familia. Remember that Roman law requires that even parties to commercial contracts deal ‘in good faith’. This is not required at common law.

8. On top of this, the inquisitorial procedure (derived from Canon law) gives judges immense power over their court. They are able to commence investigations of their own motion, put counsel and the suspect on the spot when and how they (the judges) come to ask questions (there is no ‘right to silence’), and exclude evidence based on their assessment of what is probative or prejudicial. Counsel are mainly facilitators, and before the matter comes to trial, the judge always reviews the available evidence. In court, he is the most active person, asking lots of questions. He is never a passive ‘umpire’. It is also fine for a witness/complainant unhappy with how the case is proceeding to hire new lawyers who seem more skilled at making relevant arguments. Lawyers on both sides liaise with the judge or judges. As a result, only strong cases make it to court, and civilian systems have very high conviction rates (Japan is the highest, at close to 100%). Until recently, there was no such thing as a ‘plea bargain’ in any Roman law system.

9. There is no rule against hearsay in any Roman law system. There is no rule against reporting cases that are sub judice. Judges are trained to get at the truth, as far as it is possible to do so. Confessions are considered the ‘Queen of Proofs’, and far more weight is accorded them than is the case in common law countries.

10. In short, the presumption of innocence is weaker (but still present), there is a view that rape can be more or less serious depending on circumstances, and that if anyone is going to be subject to vituperation, it is the accused, not witnesses.

11. Before you let this information freak you out, remember that (despite being hundreds of years apart and never having intersected at any point), Roman law and common law are more similar than different. One of the joys of studying both is watching Romans and Englishmen come to the same conclusions and develop the same doctrines, especially with respect to contract and property law.

12. They are different enough, however, to put us all on our guard, especially with respect to family law and sexual assault. When you change the law, you do change the country, and to watch the transformation in Europe as substantive canon law was peeled off (‘as though it had never existed’, says the nice young chap running my conversion course) is one of the wonders of legal history.

It is well to bear this in mind when considering the charges against Assange, and then to do the appropriate common law thing: let justice do its work.

38 Comments

  1. Posted December 12, 2010 at 11:30 am | Permalink

    Thanks SL

    The inquisitorial system looks likr it could be a good thing, although there could be downsides with political appointments for judges all having a particular philosophy. What’s the track record on good v bad inquisitors?

  2. kvd
    Posted December 12, 2010 at 12:12 pm | Permalink

    The following loses me as to meaning: “She didn’t have to prove that her attacker didn’t know she didn’t consent”. Sorry – but otherwise thanks SL for a very interesting post.

  3. Tim
    Posted December 12, 2010 at 1:07 pm | Permalink

    I would be interested in your take on whether the United States might have jurisdiction over Assange. I’ve seen, in some libertarian circles, some pretty outlandish views on that (one rather silly person said that because he’s not a U.S. citizen there would be no jurisdiction). Jurisdiction is, I believe, a pretty technical question when it comes to foreign nationals (persons not U.S. citizens) who allegedly committed offenses outside the United States. My understanding is that the United States might be considering prosecuting Assange for an alleged violation of the espionage act of 1917. Any thoughts?

    Also, I would assume that, because Assange is Australian, most Australians defend his actions with regard to leaking documents, or at least oppose any prosecution by the U.S. Do you have an impression on that?

    Thanks!

  4. Posted December 12, 2010 at 2:24 pm | Permalink

    [email protected] My impression is that Australian reactions to Assange run a fairly normal political gamut: I do not detect much of a “protect the Aussie” sentiment, apart from normal political arguments about whether the Oz Government is ensuring an Australian citizens rights are being protected. Even there, photogenic female drug smugglers appear to generate more ostentatious sympathy.

    [email protected] She has to prove she did not consent, not whether her attacker knew that.

    SL: Great post, very informative, thanks.

  5. kvd
    Posted December 12, 2010 at 3:06 pm | Permalink

    Thanks Lorenzo. Still can’t see the sense you make of that – but I understand your explanation. I would have preferred something like “She didn’t have to dispute a claim that her attacker didn’t know she didn’t consent”. Or even just “dispute” instead of “prove”. Pleased I’m not a lawyer. Retiring defeated.

  6. Patrick
    Posted December 12, 2010 at 6:11 pm | Permalink

    Hmm.

    I didn’t know that equity owed so much as that to canon law, maybe this is a rough generalisation for a generalist audience?

    Nor that the common law is so fiercely capitalist, it’s origins were perhaps more aristocratic to my understanding, obsessed with locality and property…but I guess as locality fell away and the competition with (and thus borrowing of ideas from) the admirality and prize courts intensified, a property-obssessed legal system formed a useful base for capitalism – but even then, it remained better at protecting the interests of the aristocracy and ‘upper classes’ than the ‘true capitalist’, who quickly resorted to arbitration…

    and this: ‘put counsel and the suspect on the spot when and how they (the judges) come to ask questions, and exclude evidence based on their assessment of what is probative or prejudicial‘ actually sounds like any Federal Court Judge sitting in Australia today. Such a Judge is also not impeded by any rule against hearsay, in the ordinary case… 🙂

  7. Chris Bond
    Posted December 12, 2010 at 6:25 pm | Permalink

    SL, excellent post thank you, making a very confusing subject for non-lawyers a bit more comprehensible.

    To save other non-Latin speakers having to look up Ulpian’s long summary… and assuming that the Wiki entry is accurate!

    http://en.wikipedia.org/wiki/Presumption_of_innocence:
    “Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit.” =
    “The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.”

    [email protected] & Lorenzo @4 re: “She didn’t have to prove that her attacker didn’t know she didn’t consent (beyond reasonable doubt). ”
    I think this means, and turning it around into the positive for clarity…

    To prove rape, she has to prove (beyond reasonable doubt):
    a) She did not consent;
    PLUS
    b) Her attacker knew she did not consent, but went ahead anyway.

  8. desipis
    Posted December 12, 2010 at 7:18 pm | Permalink

    Interesting post SL. I’ve been wondering about the differences from the times you’ve mentioned Roman/civil law in previous posts.

  9. Posted December 12, 2010 at 9:19 pm | Permalink

    [email protected]: It really is a case of horses for courses, I think. The substantive effect of Canon law in Europe was ugly and horrifyingly misogynist, but the procedural effect was excellent. There is nothing wrong with the inquisitorial method, even in its most extreme manifestations (Germany and France, where there are investigating judges who are trained for the bench from the age of 18, which leads to the phenomenon of 26 year old judges who have never practiced as advocates — it’s very freaky the first time you see one!).

    By contrast, the substantive effect of Canon law in England was excellent and the antithesis of misogynistic, while the procedural effect was horrid. LE will no doubt arrive on her charger, lance in hand, to fill us all in on how equity was used to protect women’s property while their men were away at the Crusades, and was also a way for a family to shield their daughter from the effects of coverture marriage. Procedurally, however, England had a meaningful encounter with this manifestation of the inquisitorial method:

    http://en.wikipedia.org/wiki/Star_Chamber

    [email protected]: I will send this link to a friend in the US who has handled some Constitutional and extradition matters and see if I can get him to comment.

    [email protected]: If you keep this up, I will come around to your house and force you to go to law school — clarity fail on my part.

    [email protected]: you raise a good point re arbitration, which is a Roman law borrowing (albeit one that common lawyers and English merchants took to with alacrity). Roman law is more mercantile; adverse possession (usucapio) of land in Classical Roman law was only 2 years (it was one year for moveables), for example, and you only see that time frame blowing out as time passes and the Empire’s capital markets and volume of trade tank. By the time you get to Justinian, adverse possession of land is 12 years, the same as in most common law jurisdictions.

  10. Tim
    Posted December 12, 2010 at 10:03 pm | Permalink

    Hehe that was my comment!! I’m afraid I don’t really know. I’ve handled lots of domestic “constitutional tort” actions, but never anything international. If I had to guess, I’d say that a U.S. court would be inclined to find what we call personal jurisdiction over Assange, if the prosecution were under the espionage act of 1917. Assange has contacts with the United States because he used servers that are presumably located here (Paypal, amazon), received documents that are from the United States, and the effects of his actions are felt in the United States by United States forces, albeit ones located abroad. The court might reason that it’s like to the old analogy that if you fire a weapon from one jurisdiction into another, and harm someone or something in the other jurisdiction, the other jurisdiction has jurisdiction over you, at least for purposes of that particular action.

    I have another question. Would first amendment defenses apply to a foreign national abroad (i.e., to a non-U.S. national, whose speech did not occur in the United States). Any thoughts? I’m inclined to think that this question has not been decided. So, it would be an issue of first impression on which there is little or no precedent. I’m not sure what the answer would or should be.

  11. Caen
    Posted December 13, 2010 at 4:54 am | Permalink

    My understanding is that the ‘How can the US have jurisdiction over an Australian citizen’ line is predominantly a reaction to calls for Assange to be prosecuted for treason. Treason historically is a crime that requires a particular relationship between a citizen and a state. In the terms of the US Code, the person must be ‘owing allegiance to the United States’. So the question becomes ‘Why would Assange, an Australian citizen who is not a United States citizen, owe allegiance to the United States?’

    Strictly, this isn’t a question of jurisdiction, but of whether Assange has committed any crime under American law. Theories of international law like personality and territorial jurisdiction inform what sorts of behaviour a State might criminalise, but don’t necessarily limit the power of States to legislate against certain activities, or the power of domestic courts to enforce domestic law.

  12. Patrick
    Posted December 13, 2010 at 12:07 pm | Permalink

    I wasn’t even focusing on the roman law origins of arbitration – essentially I understated the case, then, roman law is capitalist whilst common law is to the defence of the gentry.. 😉

    That said I do think that common law provides the best interface with government of all three systems, and vastly better than anything I have heard of in Eastern systems.

  13. Posted December 13, 2010 at 4:18 pm | Permalink

    SL: The combination of history, philosophy and economics seems to “fit” one for law without having done law. And I have hung around with a lot of lawyers over the years. But I also had the compliment of writing a book on High Court’s racial discrimination decisions and having a former High Court Chief Justice agree to launch it. So I am confident that I can “read” judicial decisions, if I work at it.

    [email protected] I fail to see how US freedom of speech would protect a non-US citizen outside the US. It would, I suggest, protect the rights of US citizens to read something provided by a non-US citizen outside the US.

    [email protected] I think you have answered your question in asking it. An Australian citizen cannot commit treason against the US. The US Supreme Court has its extra-territorial moments, but I fail to see any interpretative approach that would get any of the current SCOTUS judges to decide otherwise. (And if it covered Assange why not, for example, Hitler?) The American owners of the servers, however, may be in a slightly more delicate situation.

    But not much more, as the US Constitution defines treason as:

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    It is a big call to claim that leaking diplomatic cables en masse to all and sundry is “giving Aid and Comfort” to enemies of the US. Let alone that owning the servers by which someone else did so is.

    Even the 23-year old who waltzed off with all the cables is unlikely to be guilty of treason, since I doubt there was any intent to levy War against the US, or give Aid and Comfort to its enemies, or that his acts could be construed as being likely to have that effect. Guilty of theft, breaking a raft of military regulations and national security laws, absolutely. But not treason as such. After all, he could simply claim to be ensuring the citizens of the US were better informed about what their government was up to (which may well have been his intent). That does not sound terribly treasonable.

    A good lawyer could even claim that he was warning the citizens of clear and present dangers, given that the cables make it obvious that the US’s Middle East allies would like the US to attack Iran by, well, last week would have been good.

  14. Posted December 13, 2010 at 4:20 pm | Permalink

    The lawyer could even claim he was dramatising the security incompetence of the US government in the only way they could not hide from 🙂

  15. Posted December 13, 2010 at 4:36 pm | Permalink

    [email protected] The common law is very concerned about property, but it is not a defense of the gentry as such. To start with, it comes out of the “common bits” of Norman, Anglo-Saxon and Dane law. Which were certainly socially stratified legal systems, but not in quite that way.

    To the extent that an important feature of English law down the centuries is that only the holders of nobles titles are noble. Everyone else, including their wives and children, are commoners. (Hence the eldest sons of peers can sit in the Commons.) Which meant that the English peerage has always been concerned with how the law treated commoners — I suspect that is where the English got their reputation for ‘fair play’.

    On the continent, the entire family was noble. Which is possibly the most important reason why there is still a House of Lords, but no equivalent anywhere else in Europe.

    In Magna Carta, for example, the big division is between free and bonded. Hence the rights that “Tamnany Hall in chainmail” extorted from King John applied a fair way down the social scale, because there really was not a place to draw the line any higher. Which, as I suspect some of the baronage, and even more of the ecclesiastical figures, were clever enough to realise, made it more likely to stick (particularly Stephen Langton, Archbishop of Canterbury, for example).

  16. Posted December 13, 2010 at 5:35 pm | Permalink

    Common law trusts the state less. I can’t think of any other way to put it, but that is my impression. This distrust manifests itself in various ways, from worries about effective service to worries that the great and the good are not being subjected to law (this, after all, is what led to the Star Chamber).

    The Roman jurists, by contrast, have a blasé confidence that judgments will be enforced, that the rule of law will always out, etc. This is made worse by Roman law’s filtering through Napoleon and his army of codifiers. One of the very best discussions I’ve read of the different incentives produced under the two systems is in David Willetts’ book ‘The Pinch’ (2010):

    http://www.amazon.co.uk/Pinch-Boomers-Their-Childrens-Future/dp/1848872313/ref=pd_sxp_f_pt

    [The title is deeply silly and does not really reflect what is inside the covers; selected by the publishing company, I suspect].

    There is an excellent chapter that covers not only the contrast between economic units (family v individual) but also how Napoleon’s imposition of the Roman law of intestacy (all children take equally, including daughters) on much of Europe actually produced a different sort of capitalism and different corporate structures. Germans even have a special word for the ‘family firm on steroids’ where everyone’s talents have to be recruited: the ‘Mittelstand’.

    It’s very interesting.

  17. Patrick
    Posted December 13, 2010 at 8:06 pm | Permalink

    I agree that the common law ‘trusts the state less’. Fundamentally I think you are right that the very root of this is that the constitutional structure of common law is the opposition of king and subjects.

    In a most practical sense this manifests itself in the utter subordination (with the slight exception of the UK which is a bastardised common law country these days) of the administrative courts to the general courts, and the Constitutional Courts’ unified role as ultimate court of appeal in all legal matters.

    More subtly, the carry-over of adversial litigation into the administrative domain also perpetrates this. Whereas in a civil law state you are asking one arm of the executive to deny the other, in the common law state the executive stands before the Judge formally the equal of his adversary.

    Lorenzo, I agree entirely that the common law is not deliberately or specifically designed to protect or favour the gentry. But historically it has done this quite well, perhaps for the reasons I suggested at 6.

  18. Posted December 13, 2010 at 8:20 pm | Permalink

    I recall reading that a lot of English rights come from the angle/saxon/jute tradition, the germanic chieftain reliant on support of the whole tribe, more primus inter pares than divinely annointed absolute monarch… the Germanic tradition clawing back at the Norman view, until imposing the limitations on monarchs defined under Henry I as the “charter of liberties”, although it wasn’t really invoked seriously until Langton (mentioned by Lorenzo) dusted it off.

    I wonder given the goths et al migrating south over Roman territory, how more absolute monarchy arose without the Germanic responsibility to the entire tribe, as I’m guessing the goths would have had to lose the Germanic tradition.

    Guess this is Lorenzo territory.

    Damn comparative law is interesting, as it involves so much history and chance!

  19. Tim
    Posted December 14, 2010 at 6:15 am | Permalink

    @Caen. I think jurisdiction over Assange is a question that’s antecedent to whether he actually broke substantive law (not treason but the espionage act of 1917). One would have to fight jurisdiction at the outset, at least personal jurisdiction, before the court would adjudicate the merits of the claims against him. And I do think jurisdiction of the United States over Assange would be an issue. He did not commit his acts in the United States, and is not a citizen of the United States. If he were sued by the United States, and were I his counsel, I would definitely raise jurisdiction. But I admit it’s a very technical area of law.

    Now, if it were a question of subject matter jurisdiction of a U.S. court, that could be raised at any time, even on appeal or after a remand. But there’s no reason not to raise it right away.

  20. Posted December 14, 2010 at 9:24 am | Permalink

    [email protected] Absolute monarchy is post-medieval. It comes from creation of standing armies of tax-paid soldiers. One way you can tell this is that, by 1789, representative assemblies with real power basically only persisted in mountainous areas (Switzerland), peninsulas (Scandinavia), areas with other protections (i.e. Netherlands and its dykes) or archipelagoes (British Isles). In other words, places where holding off armies did not simply come down to who had the biggest controlled tax base.

    What about Iberia, that’s a peninsula? I hear you ask. Iberia was more of a pioneer of representative assemblies than England, but got screwed by silver which gave the Crown an income source it did not need to get consent for: indeed, could buy folk off with. “Politics” became all about getting on the autocrat’s gravy train. (Oil in the Middle East, and elsewhere — Venezuela anyone? — works the same.)

    The modern European parliamentary tradition comes out of Germanic warrior assemblies with clerics and then elected merchant delegates added. (An Iberian innovation rather before Simon de Montfort decided he wanted to maximise his power base in opposing Henry III’s ministers.)

  21. Posted December 14, 2010 at 9:43 am | Permalink

    [email protected] You are confusing the operation of the political system with the common law. Yes, the aristocracy and gentry (with a few privileged merchants) came to dominate the Parliament and there was a lot of generation of special privileges. Elizabeth, for example, had real problems towards the end of her reign because of all the monopolies she had handed out. Adam Smith had to smuggle goods past the guild guards on city gates.

    One of the great political and legal transformations occurred from c.1760 to c.1860 when the British Parliament decided that abolishing statutes giving privileges was going to be its major legislative activity. In other words, it massively increased reliance on common, not statute, law. This was a congruence of ideas (notably Adam Smith) and rising commercial and manufacturing interest,

    In other words, more common law meant LESS aristocratic and gentry privilege.

    It also meant less official discretions and so less corruption — hence the C19th and into the C20th reputation for British government being strikingly honest. Not something folk said about C18th British government, or earlier.

    The common law does defend property rights strongly. The gentry and aristocracy had most of the property. So they were “advantaged” in that sense.

    But one reason why Henry II developed the common law was so his royal judges could go out and make judgements based on the “common bits” in competition to knightly and baronial courts. (And ecclesiastical courts come to that — remember Thomas a Beckett.) Medieval courts ran at a profit, so that was quite a big deal. (It also meant that medieval courts were much more plentiful than modern courts: there was roughly one judicial officer per about 300 adults.)

    The knights and baronage hated the competition (both the loss of revenue and the little question of which court would you prefer to sue your lord in, his or a royal one?) but liked being able to use the royal courts themselves. Hence the Magna Carta “deal”. “Yes, your judges can operate courts and sentence, but only if our peers have found us guilty”.

    The issue of how the law operated for the titled remained a live issue until the trial of Earl Ferrers, when the House of Lords decided that peers did not have the right to murder commoners. (George II was apparently worried that the Lords would not “get it right”. But they all decided that a peer of the realm could not get away with murder, even using the “out” of insanity — remember, they were married to commoners and their children were commoners.)

  22. Posted December 14, 2010 at 10:17 am | Permalink

    Sorry about that, Lorenzo — 20 got stuck in the spammer and I didn’t notice. I have been looking out for Joseph to join in on his post and we are getting absolutely deluged with spam (including spammers who have taken the time to register gravatars, which shows persistence if nothing else).

  23. MikeM
    Posted December 14, 2010 at 10:20 am | Permalink

    He did not commit his acts in the United States, and is not a citizen of the United States.

    The question of “where” he committed his acts is a very fuzzy one. He (or one of his group) has made leaked cables available to The New York Times. The US government takes a very aggressive attitude to jurisdiction.

    The case of Gary McKinnon illustrates. He is a British man who hacked into US government computers through a dial-up internet link and a PC installed in his bedroom. (According to some reports the extent of his hacking was trying the default Unix root account password and getting into computers whose administrators had failed to change it.)

    Anyway he was accused of committing multiple offences in the US (although he has never personally been outside Britain) and there is a long saga involving US attempts to have him extradicted to face US courts.

    The gist of the matter is described here.

    US creativity should not be underestimated in these circumstances.

  24. Posted December 14, 2010 at 10:25 am | Permalink

    SL: It’s fine, I expect some delay when I have two or more links.

    Back on the common law thread, of the top 20 least-corrupt countries 8 are currently or formerly British.

    In order, from higher corruption free rating to lower, New Zealand, Singapore, Canada, Australia, Hong Kong, Ireland, Barbados and the UK.

    (One notes from the map, that average income and lack of corruption are reasonably correlated.)

  25. Posted December 14, 2010 at 10:43 am | Permalink

    Interesting that three of the cleanest are in Scandinavia, too (the Danes are equal #1 with the Kiwis, while Sweden and Finland are tied on #2).

    Whatever else happens, I think we can be sure Assange will get a fair trial.

  26. Posted December 15, 2010 at 3:39 am | Permalink

    [email protected] Quite. Notice, that among the European countries listed, only Luxembourg, Austria and Germany do not fit into mountains, dykes, peninsulas and archipelago/island point. That is, have a long tradition of deliberative assemblies with real power.

  27. Caen
    Posted December 15, 2010 at 3:47 am | Permalink

    @Tim: What you are describing sounds like a legitimate argument in relation to civil proceedings, but I’m not sure the argument holds in relation to criminal proceedings.

    Being a Victorian (and, linking back to the topic, a person with more knowledge of common law than Roman law), my understanding on this point is influenced by common law decisions. See this extract from Re Hamilton-Byrne and Others [1995] 1 VR 129:

    Before considering Libman v R I would make the following further observation about Owen’s case. Although question (a) reserved by the case stated refers to the County Court’s “jurisdiction”, and some of the submissions we received not unnaturally did so, Owen’s case is better classified as one dealing not so much with Jurisdiction as with indictability – with substantive rather than procedural law. Lord Diplock made this clear in Treacy v Director of Public Prosecutions at 563. Speaking of Owen’s case, his Lordship said:

    “The question there was whether a conspiracy entered into in England to commit acts in Germany which were unlawful under German law to achieve an object which was unlawful there constituted a conspiracy at common law which was indictable in England. The unanimous opinion of this House was given in the speech of Lord Tucker. He treated the question correctly – as one not of jurisdiction but as to what were the characteristics of the crime of conspiracy at common law. The conclusion reached upon examination of the authorities was that the common law crime of conspiracy did not extend to an agreement to achieve an object which was unlawful in a foreign country or to use means to achieve it which were unlawful in a foreign country.”

    In the present case the accused were (so far as appears) duly arraigned before the County Court. The court therefore had “jurisdiction”, in the sense of authority, to conduct a trial upon count 1. I therefore take questions (a) and (b) in the case stated, so far as they concern count 1, really to ask whether the acts alleged against the accused constitute an offence as charged in count 1, rather than whether the court has jurisdiction to determine whether their acts constitute an offence: see and compare also Treacy v Director of Public Prosecutions at 559 per Lord Diplock; Director of Public Prosecutions v Stonehouse [1978] AC 55 at 90 per Lord Keith of Kinkel; McDonald v Bojkovic [1987] VR 387 at 392. In other words I treat questions (a) and (b), so far as now relevant, as asking whether count 1 charges an offence known to the law of Victoria.

    So, under the criminal law, my understanding if the person is duly arraigned (either by arrest and charge while visiting the country or by extradition), the criminal courts of the country have jurisdiction to determine whether that person has broken the substantive law of the country. Admittedly though, breaches of the law involved in getting Assange before a US court could lead to all sorts of remedies, though extradition law isn’t my strong suit, and so I can only make passing reference to the Eichmann trial to suggest that a remedy is not certain.

    To say that he didn’t commit his acts in the United States is, it seems, to assume two things. First, that the relevant United States law he is to be charged with does not operate extra-territorially and second, that the act of setting up and internet leaks service, communicating with an American citizen and making it possible for that American citizen to leak classified information is not an act ‘in America’. The internet has had a radical impact on our understandings of location, and at least one major case has held that internet activity might be committed where the actions are felt: See here for a brief summary, with links to the full decision: http://en.wikipedia.org/wiki/Gutnick_v_Dow_Jones

    Finally, and I apologise if this sounds terse, but what exactly do you mean when you speak of the Epsionage Act of 1917? My searching skills are failing me on accessing American law, so I don’t know the text of any particular provision you are referring to. This could be important if the text makes it clear that it has extra-territorial operation.

  28. Patrick
    Posted December 15, 2010 at 5:03 am | Permalink

    I think Caen is right about the difference between civil and criminal law. I am not sure there is any concept of personal jurisdiction in a criminal case at all, since defendants are not normally asked to consent to anything, normally in fact they are dragged there in handcuffs!

  29. Posted December 15, 2010 at 7:34 am | Permalink

    http://www.stratfor.com/weekly/20101213-taking-stock-wikileaks is one of the best analyses I’ve seen, from the private-enterprise home-away-from-home for former and future CIA analysts.

    Their comments mirror Gates – the impact of even the Afghan document leaks (more related to security) is minimal, nothing informed observers didn’t already know, red-faces, and repostings of diplomatic staff so their hosts don’t have “I know you know I’m an idiot” awkwardness. Indeed they say mostly it puts the US in a good light – the cables are on the ball as far as analysis goes.

    On the law, they say that the line between the crime and non-crime by a publisher (looking at the more explosive Pentagon Diaries as precedent) depends on whether the documents fell into the publisher’s lap, or whether there was enticement/encouragement of the copying of documents – the tricky bit being that the very existence of wikileaks /might/, with a long bow, be considered encouragement in general, although not in any particular case.

    The sex charges, of course, are a different issue, unless the charges were politically motivated, but it’s difficult to assign any probability to this, and as stated in earlier comments, it is reasonable to expect cleanliness on this in Sweden, although any extradition proceedings from Sweden to the US would be a useful diagnostic of political influence on the legal system.

  30. Posted December 15, 2010 at 4:17 pm | Permalink

    [email protected] That StratFor piece is excellent, thanks for the link.

  31. Posted December 15, 2010 at 5:15 pm | Permalink

    [email protected]: Get on the stratfor weekly email … The geopolitical analysis is so damn good and straight.. Between EIU, Nature and Strafor weekly newsletters, … everything covered with no dollars, no effort and sod all kilobytes… Apart from celeb gossip and sport.

  32. PAUL WALTER
    Posted December 15, 2010 at 5:47 pm | Permalink

    ahh, Statfor.That’s the mob in Texas, I think. Thought their projections for IR in the coming century quite interesting.
    Some really weird wars upcoming, if they are right.

  33. pete m
    Posted December 16, 2010 at 8:03 pm | Permalink

    As an aside, I read that at worst he faces a small fine. If that is true, I wonder at the lengths the Swedes are going to in bringing him to justice. I don’t believe the US would have any better chance of securing him for extradition in Sweden than UK – is that assumption true? There seems to be much more to this than a simple criminal matter, and it has little to do with the cables / documents leak to date.

    I distrust the inquisitorial system, having borne the brunt of too many interfering questions from a judge which derailed a trial. Perhaps in criminal matters it is simply moving the prosecution to the bench, but doesn’t that concern anyone as well?

    stratfor make some big calls – but their analysis of current events always strike me as intuitive.

  34. Posted December 16, 2010 at 10:55 pm | Permalink

    He’s just been bailed for £240,000.

    http://www.bbc.co.uk/news/uk-12005930

  35. Posted December 17, 2010 at 5:14 am | Permalink

    [email protected]

    In the bbc report you link to, the following caught my eye:

    A CPS spokesman said on Thursday: “The Crown Prosecution Service acts as agent for the Swedish government in the Assange case. The Swedish Director of Prosecutions this morning confirmed that she fully supported the appeal.”

    But earlier Nils Rekke, from the Swedish Prosecutor’s Office, claimed it was “a purely British decision”.

    Is that “purely British decision” typical in such cases, or do they more typically act on instructions of the other country?

  36. Posted December 17, 2010 at 5:26 am | Permalink

    Two countries confused by contrasting systems, Dave. Basically:

    1. It is much more common for persons suspected of sexual offences and crimes of violence to be refused bail in civilian countries.

    2. While the English CPS acts as agent for the Swedish DOP, the latter cannot control any of the outcomes in an English court, or control how the CPS makes its arguments to the English court.

    3. Another thing to bear in mind, too, is that it is unusual for the evidence placed before the Examining Magistrate (juge d’instruction is the French term; the Swedes will have an equivalent judicial officer) to be allowed outside of his purview. I’d say this is the first sighting the Poms have had of it, which is why Assange has spent the week banged up in Wandsworth.

  37. midi
    Posted March 29, 2012 at 9:14 pm | Permalink

    My question is related to this issue: http://www.proz.com/forum/interpreting/203314-privatization_of_legal_interpreting_services_in_the_uk-page4.html . In what way specifically does having a “sworn translator” system constitute “moving away from the common law system”? It would seem to me that it is much better for citizens to have a system of “sworn translators”, who have to pass an exam or they cannot work in the court of law as interpreters/translators, than the system where anyone can style themselves a translator/public interpreter?

  38. Posted July 17, 2019 at 3:31 pm | Permalink

    The lawyer could even claim he was dramatising the security incompetence of the US government in the only way they could not hide from.

3 Trackbacks

  1. […] This post was mentioned on Twitter by Amanda Rainey, Legal Eagle. Legal Eagle said: Comparative Law 101: Roman law v Common law and Julian Assange.: I wrote a long comment on a lengthy LP thread c… http://bit.ly/eFAtWX […]

  2. […] I’ve discussed previously, one of the few really large differences between common law and Roman law is in the treatment of […]

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