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Table 1.0 Habeas Corpus versus Corpus Juris
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HABEAS CORPUS (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 |
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 |
Right to trial by jury of one’s peers – under Common Law the really important matters are reserved to the people. It is the common people who act with the judge to provide a check on the judge (otherwise the judge acts as judge and jury which is the concentration of powers and the very definition of tyranny). The people (peers) are sovereign and must make the final decision. Further, it is also the right under Common Law for the jury to first judge the law the accused is alleged to have broken. This provides a check on the legislature, and allows the people to cast down corrupt laws. Further, professional judges (as opposed to lay magistrates) are not independent of the government and invariably enforce the will of the government – there is thus no check on the government and it would make, judge, and enforce its own laws however it pleased |
Tried by professional judge(s) (‘Inquisitorial’ model) |
Right to an open court – a defendant must have the right to public witnesses in a trial or else government can do things illegal in secret and can 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 |
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 brought 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) |