One concept sharply distinguishing common law legal systems from Roman law ones are their approaches to evidence.
By separating jurist and fact-finder, (judge and jury in America), systems such as ours compensate for human biases (among their other functions) and prevents the fact finder from obtaining some information that would on average make them dumber. For example, the system can notice that people generally set too much store by past criminal history and hearsay evidence, so a judge restricts when such evidence can even be heard by jurors.
Ideally, a fact finder would only use evidence appropriately and not need to be shielded. Where there is no separate fact finder such as a jury, as in inquisitorial Roman law derived systems, it makes no sense to have rules of evidence by which the judge restricts what a fact finder may hear and consider, as the judge is the fact finder as well. Systems with one judge and no jury are not disadvantaged provided the judge can calibrate according to the evidence no worse than he or she would be able to distinguish which evidence to pass along to a jury, were there one.
I can use a similar practice by asking someone for their opinion and giving them only some of the evidence I have—namely, the evidence I think is of the type that will do them more good than harm to hear.
One concept sharply distinguishing common law legal systems from Roman law ones are their approaches to evidence.
By separating jurist and fact-finder, (judge and jury in America), systems such as ours compensate for human biases (among their other functions) and prevents the fact finder from obtaining some information that would on average make them dumber. For example, the system can notice that people generally set too much store by past criminal history and hearsay evidence, so a judge restricts when such evidence can even be heard by jurors.
Ideally, a fact finder would only use evidence appropriately and not need to be shielded. Where there is no separate fact finder such as a jury, as in inquisitorial Roman law derived systems, it makes no sense to have rules of evidence by which the judge restricts what a fact finder may hear and consider, as the judge is the fact finder as well. Systems with one judge and no jury are not disadvantaged provided the judge can calibrate according to the evidence no worse than he or she would be able to distinguish which evidence to pass along to a jury, were there one.
I can use a similar practice by asking someone for their opinion and giving them only some of the evidence I have—namely, the evidence I think is of the type that will do them more good than harm to hear.