Habeas Corpus and Corpus Juris

A Brief History of Civil and Common Law

J. Andrew, courtesy Ian Parker Joseph

As far as modern times are concerned, Civil Law originated chiefly from the Roman Empire.[9] For this reason it is sometimes called Roman Law. This philosophy spread over continental Europe[10] and, in the Eighteenth Century, the Civil Law ravaged France in what became known as the Reign of Terror. 

Today, born of its past and present geographical sway, Civil Law is also known as European Law. 

Common Law has its roots in antiquity. Some believe it to have originated from the divine law of statutes and judgements given to the Israelites by Moses. Whatever its origins, it was brought across Europe and to Britain by the Anglo-Saxons. It was a law common to all those peoples and hence became known as Anglo-Saxon Common Law.[11] 

In Europe Civil Law was the legacy of the later Roman Empire, but England remained free of this influence and thus the Anglo-Saxon Common Law eventually came to be called English Common Law.

English Common Law was seriously compromised during the Norman Conquest which brought over the European Civil Law and imposed that system on Britain under the name of Feudalism. However, after long and bloody centuries, rights and freedoms were gradually won back and restored. Perhaps the primary and most notable date of this period is AD 1215 when the Magna Carta was signed – a document that is still held to be binding today as an important part of the British Constitution.[12]

The Framers of the Constitution of the United States drew heavily upon Common Law when drawing up that remarkable freedom document. William E. Gladstone (1809-98), the British Prime Minister, was so impressed with the US Constitution that he said it was “the most wonderful work ever struck off at a given time by the brain and purpose of man”. 

American freedom drew many of its constituent parts from English Common Law.[13] Ireland, Malta, Australia, Canada and New Zealand also adopted (to some degree) the English Common Law in the founding of their own governments. The same cannot be said for Europe.

Common Law versus Corpus Juris

Common Law is a body of concepts and laws in harmony with natural rights and justice. Corpus Juris (Latin for “body of laws”) is a system of judicial laws or tenets rooted in Civil Law and thus based on privilege and the whims of rulers. The following table contrasts the practises (in theory) of the two systems. I have added explanatory notes in the first column in an attempt to highlight the importance of each point and its relationship to and/or effect upon natural rights. Table 1.0 Common Law versus Corpus Juris

COMMON LAW (UK/US system)*	CORPUS JURIS (European system)
No arrest without evidence – thus the citizen is free from harassment by the police and other government officials	Can be arrested without evidence
No holding of suspects for more than a fixed and very limited time unless charges presented in open court – this prevents governments from violating the liberty of citizens by unduly detaining them or holding them for reasons other than criminal. Habeas Corpus (Latin for “having the body”) is the right (formally recognised in the Magna Carta) to have the prime evidence against any suspect considered publicly by a court of law within a very short period of arrest (usually 24 hours).	Can be held indefinitely
Right to face your accuser and see evidence – anonymity of accusers would mean the government could fabricate testimonies; accusers (or witnesses) should be known so that they can be held accountable; the accused has no come back where this is not so. Evidence must be known to the accused or else government again could fabricate the same and give the accused no way to prove it false	Accuser may be anonymous; no right for accused to see evidence
Lay Magistrates Right to trial by jury of one’s peers ‘Adversarial’ model – under Common Law the really important matters are reserved to the people. It is the people of the country (represented by a jury) who act to provide a final legal check on the government by refusing to find a person guilty if they feel the law itself is either unjust or unjustly applied[14], and by limiting sentencing of criminals so that excessive punishments cannot be imposed. The people (peers) are sovereign and must make the final decision. To deprive a country of trial by jury is to deprive its people the last legal means of countering the government, leaving only the right of revolution as an option	Tried by professional judges No right to trial by jury ‘Inquisitorial’ model
Right to an open court – a defendant must have the right to public witnesses in a trial or else government can act illegally in secret as well as bribe those who it knows will attend. Public and free access to a trial thus helps defend the defendant against miscarriages of justice	Closed court
Presumption of innocence (innocent until proven guilty) – Common Law always gives the benefit of doubt in favour of freedom. Unlike Corpus Juris it does not treat everyone like a potential criminal. This is perhaps the most important tenet, for with such an attitude of non-judgement many Corpus Juris laws would not have come into existence in the first place	Held to be guilty until proven innocent
Protection against double jeopardy (cannot be tried more than once for the same criminal offence) – Clearly this right protects the defendant from being repeatedly tried until he is found guilty and thus affirms his right to the presumption of innocence	Can be subjected to repeated trials on the same charges until found guilty
Burden of proof on prosecutor (it is up to the prosecutor to prove you are guilty) – This is an integral part of the right to presumption of innocence (see above). A part of the right to free speech is to remain silent. Under Common Law there is no requirement or force used on the defendant to testify against himself. In a very real sense it is the charges themselves that are primarily on trial and the integrity of those who have brought them. If the burden was on the defendant to prove himself innocent many accusations made by enemies (knowing the burden would not be on them) could be brought to bear, and the defendant would be continually oppressed with the task of defending himself with eventually no recourse to the resources necessary to clear his name	Burden of proof on defendant (you are presumed guilty and must prove your innocence)