The laws of most countries are based on one of two great systems of law, Roman law or common law. However, we must beware of a possible confusion resulting from different applications of the same term. For instance, in countries where Roman law is followed, they do not call it “Roman law” but rather “civil law.” On the other hand, in lands where the common law is practiced the term “civil law” is used to contrast with “criminal law.” So, let us keep to the terms “Roman law” and “common law” in order to avoid any misunderstanding.

Roman law is much older than common law.

As to common law, it might be said that it began with the Magna Carta in the thirteenth century C.E. King Edward I of England was to common law what Justinian was to Roman law. An outstanding point in the development of common law came with the publication of Commentaries on the Laws of England in the eighteenth century by the distinguished jurist, William Blackstone.

Investigation of the two systems brings to view evidences of rivalry. However, since neither system is perfect, it is to be expected that each has its merits and demerits. One outstanding difference is that under common law a person is considered innocent until proved guilty, whereas under Roman law the person charged with a crime is considered guilty until he can prove his innocence.

Making Comparisons

One thing not found in this courtroom is a jury box. In common law there is a jury of the defendant’s peers to decide on his guilt or innocence or, in some lawsuits, determining the amount of the judgment. Here, under Roman law, the judge alone decides those matters.

Roman law is said to be based more on rules, on what is called “doctrine,” while common law is based on principle and precedent. Under the former the judge plays a lesser role. He is more like a referee calling the plays according to the rules. Under the common-law system lawyers and judges look for precedent, and a judge may become famous for some decision handed down, one that will be used as a precedent for generations to come.

The handling of the defendant before coming to trial also differs under the two systems. In some parts of the world common law has progressed to the point where the person arrested cannot even be questioned by the police until he has an opportunity to be represented by a lawyer and until he has been told what his rights are under the law. Here in Curaçao, on the other hand, one can be arrested when suspected of a crime and held incommunicado for four days or longer while the case is being investigated. The advantage of this is said to be that a culprit is not able to establish a false alibi while held incommunicado. The advantage, of course, is on the side of the police. In such circumstances a criminal is more likely to confess his crime.

It may be hastily concluded that jury trial under common law offers the best likelihood of a fair hearing of the case. But is this necessarily so? What does the average person serving on a jury know about law? Is it not true that members of a jury can be more easily swayed emotionally by a clever lawyer, while a judge or panel of judges is more likely not to be swayed?

There is also the matter of time and expense to be considered. The time consumed in choosing a jury often piles up and results in a backlog of cases in the common-law courts. Under Roman law a number of cases may be disposed of in the time it takes to choose one member of a jury under common law​—especially if the member happens to be a controversial figure.