MZUMBE UNIVERSITY MAIN CAMPUS

FACULTY OF LAW

COURSE : LLB 1

SUBJECT : LEGAL SYSTEMS OF EAST AFRICA

CODE : LAW 126

NATURE OF WORK : INDIVIDUAL ASSIGNMENT

LECTURER NAME : MR, SHAHIBU

NAME OF STUDENT : WINNIEFRIDA PAUL MASSAWE

REGISTRATION NO. : 1236129/T.24

DATE OF SUBMISSION, 12th DECEMBER, 2024

QUESTION,
Discuss the Key Four(4)justice participants in common law legal system and explain
how their role differ significantly from that in civil law legal system.
 WORK OUTLINE
0.1 Introduction
1.1 meaning of key terms
1.1.1 Legal Systems
1.1.2 The civil code or civil law
1.1.3 Common law legal system.
2.0 As per the requirement of the question the follow are the four key justice
participants in common law legal system and how their roles differ from the civil legal
system,

2.1 Judge
2.1.1 Role in Common Law
2.1.2 Difference in Civil Law
2.2 Lawyers (Attorneys)
2.2.1 Role in common Law
2.2.2 Difference in Civil Law in term of role
2.3 Juries
2.3.1 Role in common law
2.3.2 Difference in Civil in term of role
2.4 Litigants (Plaintiffs and Defendants)
2.4.1 Role in common law
2.4.2 Difference in Civil Law in term of role
3.0 Key Differences in Roles between Common law legal system and Civil law Legal
system
3.0.1Judicial Discretion,

3.0.2 Adversarial vs. Inquisitorial,

3.0.3 Use of Juries

3.0.4 Role of Litigants

4.0 CONCLUSION
5.0 REFERENCES

i
0.1 Introduction
1.1 meaning of key terms

1.1.1 Legal Systems it can be defined to mean a social order characterized by a high degree of

institutionalization in the creation of general prescriptions, in the apparatus for adjudicating

disputes and in ordering the position of force. 1 Or Legal system means structure, organization

and coordination of laws which exist in a given country. 2 Legal System presupposes the

existence of laws, including the constitution, regulations, the instruments, case laws or

regulations have been violated.3 In both common law legal system and civil law legal system

there are key participants in legal aspect, who play the more crucial roles in the administration

of justice.

1.1.2 The civil code or civil law legal system, is the type of legal system which is found in

continental Europe , it based on Western Europe the system is also called Continental Law or

Napoleonic Law. Indeed, in civil code systems the courts do not usually have as much freedom

to interpret laws.4

1.1.3 Common law legal system, This is the kind of legal system which is English based legal

system this system developed from a set of traditional laws first brought together in England

around the 12th Century.5

2.0 As per the requirement of the question the following are the four key justice

participants in common law legal system and how their roles differ from the civil legal

system,

2.1 Judge, act as referee in case, with both come to the judge for the purpose of solve their

conflict.6

2.1.1 Role in Common Law, In the common law system, judges play an active role in

interpreting laws, setting precedents, and applying legal principles. Their decisions often serve

1
Hughes, G., The Existence of a Legal System, New York University Law Review (1990), 35:109
2
Issa ,O (2014). Legal System of Tanzania Laws and Court, Penuel printing,Mbeya-city at page 1
3
Mtaki, C. K., Constitutions and Legal Systems of East Africa: part one, @ p.3
4
Ibid’
5
Issa, O, Legal system laws and Court, Fifth th Edition, 2020, at page 7.
6
U.S. Department of Justice, International Legal System- an Introduction, Washington, Dc, at page.5.
1
as precedents for future cases, ensuring consistency and predictability in the legal system.7 In

refer the case of Donoghue v Stevenson8 in this case the judge’s decision in creating the

principle of negligence formed the foundation for future tort law decisions in common law

jurisdictions.

2.1.2 Difference in Civil Law, in civil law systems, judges primarily apply codified statutes

and legal codes.9Their role is more investigative, often actively participating in gathering and

examining evidence. While in Common law legal system the role of Judge are very well and

judge have ability rule in interpreting law and apply new rules.

2.2 Lawyers (Attorneys) prosecutor is responsible for filling criminal trial and charges against

accused person. and lawyers represent parties before the court of law.

2.2.1 Role in common Law, Lawyers in common law systems represent the parties in a case,

presenting evidence and arguments to support their client’s position. 10 Lawyers in common law

systems play a central role in advocating for their clients, presenting evidence, questioning

witnesses, and making legal arguments. The adversarial nature of common law means that

lawyers are responsible for controlling the flow of the trial, and their role is pivotal in shaping

the outcome. In the case of R v Dudley and Stephens11 defense attorneys argued that the

sailors' actions were justified by necessity, highlighting the active role lawyers play in framing

the case.

2.2.2 Difference in Civil Law in term or role, in civil law systems, lawyers still represent

parties, but the process is less adversarial. The judge takes a more active role in investigating

the facts, and lawyers assist in this process rather than solely advocating for their client’s

position. Since judges play a more investigative role, lawyers in civil law systems focus on

presenting the facts and ensuring that legal procedures are followed. They do not have as much

7
U.S. Department of Justice, International Legal System- an Introduction, Washington, Dc, at page.5.
8
1932 Retrieved from https://www.professionalnegligenceclaimsolicitor.co.uk/duty-ofcare-key-tort-law-
judgnment-donoghue On Friday 6, Dec, 2024 at 15: 08 pm
9
Ibid’
10
U.S. Department of Justice, International Legal System- an Introduction, Washington, Dc, at page.5.
11
(1884) 14QBD 273 Retrieved from https://www.lawteacher.net/cases/r-v-duley-and-stephens.php. On Friday 6,
Dec, 2024 at 1720pm.
2
influence over the outcome of the case as in common law systems because the judge has

greater control over the trial process.12

2.3 Juries, are people who assist the court in making the decision, the role is to decide the facts

to determine whether the accused person is guilty or not. 13 In these systems, a jury is

composed of a group of citizens who are tasked in determining the facts of a case and

delivering a verdict. They do not have a role in interpreting the law but decide whether the

facts support the legal claims made by the parties involved.

2.3.1 Role in common law, the role is to decide the fact whether accused person is guilt or

not, also there are limitation of the number of jury and how must agree with verdict of the

cases.14 As example in the case of The People v. O.J. Simpson15 in this case the jury was

responsible for determining whether O.J. Simpson was guilty of murder based of the fact and

evidence which provided before the court of law.

2.3.2 Difference in Civil Law, in this kind of legal system juries are less common in civil law

systems. Instead, judges or panels of judges determine the facts and make rulings. When juries

are used, they often have a more limited role and are usually found in serious criminal cases. 16 .

While in civil law jurisdictions, judges are expected to investigate the case themselves, gather

evidence, and make determinations on both legal and factual matters, which means the process

is less reliant on public participation.

2.4 Litigants (Plaintiffs and Defendants), these are victims or parties which involved in

specific cases it may be in civil or criminal cases.

2.4.1 Role in common law, Litigants in common law systems are the parties involved in a

legal dispute although the role under common law has the very less active role in proceeding

12
U.S. Department of Justice , International Legal System- An Introduction, Washington, Dc, at page.8
13
Ibid’
14
Supra Note 12
15
1995
16
U.S. Department of Justice , International Legal System- An Introduction, Washington, Dc, at page.8
3
rather than other systems.17 Primary rule of victim is witness at a trial they rely heavily on their

lawyers to present their case and argue on their behalf in court.18

2.4.2 Difference in Civil Law, in civil law systems, litigants still play a crucial role, but the

process is more judge-driven. In this victim have more certain role in criminal proceeding. 19

3.0 Key Differences in Roles between Common law legal system and Civil law Legal

system

3.0.1 Judicial Discretion, Common law judges have more discretion to interpret laws and set

precedents, while civil law judges focus on applying codified statutes.

3.0.2 Adversarial vs. Inquisitorial, in common law legal system generally are adversarial in

nature with lawyers playing a central role in presenting cases. While in Civil law systems are

more inquisitorial, with judges actively to investigate and direct the proceedings.

3.0.3 Use of Juries: Juries are a fundamental part of the common law system, especially in

criminal cases, whereas they are less common and have a more limited role in civil law

systems.

3.0.4 Role of Litigants, In common law systems, litigants rely heavily on their lawyers to

present their case, while in civil law systems, judges take a more active role in investigating

and interacting with litigants.

4.0 Conclusion, as the requirement of the question the role of the key participant in common

law and civil law legal system play vary significantly due to the differing nature of these legal

systems. as provided in common law aspect is more characterized active role for judges and

lawyers in respect of making justice with an adversarial approach and based on precedents,

while in civil law focused in more codified laws and an inquisitorial approach, with judges

taking on a central role in both fact-finding and law application in specific cases.

17
U.S. Department of Justice , International Legal System- An Introduction, Washington, Dc, at page.8
18
Ibid’
19
U.S. Department of Justice , International Legal System- An Introduction, Washington, Dc, at page.9
4
 5.0 REFERENCES

CASES

People v. O.J. Simpson 1995

R v Dudley and Stephens (1884) 14QBD 273

Donoghue v Stevenson 1932

BOOKS
Hughes, G., The Existence of a Legal System, New York University Law Review (1990).
Issa, O (2014). Legal System of Tanzania Laws and Court, Penuel printing,Mbeya-city.
Issa, O, Legal system laws and Court, Fifth th Edition, 2020,

Mtaki, C. K., Constitutions and Legal Systems of East Africa: part one,

PAPER
U.S. Department of Justice, International Legal System- An Introduction, Washington, Dc