By Skupsky, Donald S.
ARMA Records Management Quarterly , Vol. 25, No. 1
The United States generally permits the use of various record media for all purposes including evidence.(1) Different legal requirements in other countries affect microfilm, computer and optical disk records.
INTERNATIONAL LEGAL SYSTEMS
Two major legal systems prevail in the world: the common law and the civil law systems. The United States, England and the British Commonwealth countries -- predominantly the English speaking countries -- follow the common law system. Even modern statutes, regulations, and rules of evidence adopted independently by these countries exhibit remarkable similarities regarding records media.
The remainder of the world predominantly follows the civil law system. The civil law system is based upon ancient Roman law. Rome imposed this legal system on countries in its empire. Afterward, France and Spain in particular transferred this philosophy to other parts of the world. Historically, French served as the international language, especially the language of aristocrats and diplomats. Through conquest and diplomatic exchanges, France expanded this legal system to other countries. Spain also transferred the civil law system through exploration and conquest to countries under its domain -- namely Latin and South America.
Most established and newly-formed countries fall into one of these two schools of legal philosophy. Recordkeeping laws generally conform to the type of legal system followed. You can often determine the legal philosophy of a country by reading its laws related to records.
The two prevailing international legal systems exhibit distinctions that affect their attitudes toward records. Under the traditional common law philosophy, the courts exercised great discretion to establish new laws. England initially did not have many written laws specifying the legal conduct of its citizens. Courts applied principles of fairness and equity to real-life fact situations. As more courts reached the same conclusion in law, consistent principles evolved. Judges faced with similar fact situations applied these standard principles rather than reviewing each matter from scratch.
Today, specific statutes, regulations and rules of evidence have replaced the common law process for evolving the law. Still, the basic principles of fairness, equity, and application of the law to modern day situations prevail. In common law countries we generally find an open attitude toward innovation and technology and a reluctance to restrict personal freedoms without precise restrictions in the law.
Common law countries generally follow the same major principle of law: you may perform any activity unless it is specifically prohibited or restricted. In a records context, you may use any system of recordkeeping unless the form of recordkeeping has been restricted in some way or prohibited. Legislatures and regulators alike may enact and enforce only clear, unambiguous laws that control conduct.
The civil law system, rooted in Roman law, is quite different. Since the Romans conquered other countries and imposed their legal system, their laws tended to foster Rome's best interests. As a conqueror, they wanted to repress the local populace to prevent uprisings and simultaneously establish strict accounting and recordkeeping procedures to ensure prompt and complete payment of taxes and duties.
Modern civil law countries generally follow a major principle of law: you may not perform an activity unless it is specifically permitted. Although the needs of modern society tempered the harsh roots of Roman law, countries following civil law philosophies often prescribe a specific method of recordkeeping and restrict the systems of records that an organization may use. Unless the law specifically permits a particular technology or system, you may be precluded from utilizing some systems in these countries. Courts will rarely intervene to reinterpret these laws to meet the needs of modern society. …