COURT SYSTEMS AND LAWbureaucrats. Closest to the U. S. lawyer in private
practice is the French avocat (distinctions such as
those between the avoues, who acted as solicitors in
appeals courts, and the conseil juridiques, who give
general advice and represent clients before com-
mercial courts, are gradually being eliminated or
reduced in significance), the German anwalt or
Italian avvocato (Merryman et al., p. 918). Much
different from that known in the United States is
the notary who receives legal training and is an
important person. He drafts important legal in-
struments, such as corporate charters, wills, and
instruments transferring land, as well as contracts.
Most important, he authenticates documents. Once
he does so, the instrument is accepted in court
without further question. They also have monopo-
listic control over assigned territories. In Germany
the services of a notary are required to validate
legal documents for purchase, sale, and mortgage
of land, for official records of decisions of compa-
ny meetings, and for sale of shares in a private
company (Merryman et al., p 911). Academic law-
yers are found in a law school where they carry on
the tradition of the old Roman juriconsult. Howev-
er, most academic lawyers work for a professor
with little or no pay, and wait for a vacancy that
may never come. In Latin American countries,
such persons may hardly earn a living, having to
take on regular work as a lawyer in private practice
or in public office.
CIVIL AND CRIMINAL PROCEDURESomething should be said, in brief, about varia-
tions in procedure between the two systems. Here,
the word ‘‘civil’’ is used in contrast to criminal.
There is no trial or jury in civil cases, as may often
be the case in the United States, though not in
England. The entire process is different. The pres-
ence of a jury in the United States forces an
acceleration of the entire process because of the
difficulty and expense of getting the jury assem-
bled and empanelled. Once that is the case, the
court proceeds immediately with the trial in an
attempt to conclude as quickly as possible.
In Civil law jurisdictions, civil cases go much
more slowly. There is a brief preliminary stage
when pleadings are submitted to a hearing judge.
Next follows an evidence-taking, where the hear-
ing judge takes notes and prepares a written rec-
ord. That is later submitted to the deciding judge
who receives briefs from the counsel and listens to
arguments. All of this takes the form of a series of
meetings as each issue is brought to the attention
of the hearing judge. There is little surprise as each
lawyer is notified of each issue as it comes up, and,
without a jury, there is no cross-examination. Gen-
erally, questions are passed to the judge who may
conduct the investigation. There are fewer of the
rules of evidence familiar to American lawyers
(such as the exclusionary rule whereby illegally
gathered information is excluded from trial),
though a number of rules are employed, such as
excluding biased persons from testifying, as well as
taking what is called a ‘‘decisory oath’’ in some
countries. There is in many countries a ‘‘loser
pays’’ rule, referring mostly to legal fees, though
the amounts are usually limited by a court sched-
ule. Contingent fees are usually considered illegal
(France) or unethical (Germany) but are found in
Japan, Indonesia, and Thailand (Merryman et al.,
p. 1026). Many foreign legal authorities are ap-
palled by its prevalence in the United States, feel-
ing that a lawyer should not be personally given a
stake in the outcome of a case.Although substantive criminal law is similar in
both systems, civil law jurisdictions, in line with the
revolutionary principle of limiting the power of
judges, reject the American practice, which gives
the judge power to award penal and general dam-
ages in criminal cases, not to speak of the con-
tempt power (which is very rare), instead insisting
the judge be limited to what is provided for in
legislation. The contrast is often drawn (or over-
drawn) between what is called the ‘‘accusatory’’
model in the United States and the ‘‘inquisitorial’’
model in civil law countries. Historically, the accu-
satory procedure is felt to have been a develop-
ment from that of private vengeance in which the
interested parties would be the main participants.
Instead of settling their dispute by direct conflict
or feud, a legal procedure would involve a neutral
third party who would seek to secure a settlement.
In such a triadic situation, as noted at the outset,
the object was to secure an outcome that would
settle the matter by leaving each party feeling
justice had been done. In earlier times, when trial
was by battle, ordeal, or other ways, although
seeming to be a throwback to a time of ‘‘barba-
rous’’ cruelty, these methods, apart from their
presumed psychological effects (the guilty party