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Law is a set of general rules which are created by a superior entity in order to regulate human behaviour and maintain justice and peace in the society. Law applies to everyone living in a particular territory [1] . There are as many legal systems in the world as countries, but for academic reasons we classify them into three main categories: Continental (Civil, Romano-Germanic) legal system, Common (Anglo-American) legal system and Religious legal system. Law can be split up in different branches such as, Criminal law, Civil law, Commercial law, etc. In this essay I will discuss the differences between Criminal and Civil procedure in Continental and Common legal system.

Continental legal system is the oldest and most widely implemented legal system in the world. It derives from Roman law, Canon law and Commercial law. The Roman law started its contribution by the XII Tables which were published in 450 B.C. Later in the year 530 Justinian codified Roman law by publishing “Corpus Juris Civilis”. According to Justinian Roman law consisted of Ius Civile the body of laws which applied to local citizens, Ius Gentium the laws which applied to foreigners and Ius Naturale the body of laws that were considered common to all human beings [2] . The Canon law was developed by the Church in order to administrate and monitor the rights and obligations of the people. The needs and interests of merchants lead to the development of Commercial law. The historical sources of concepts, institutions, and procedures come from these three sub traditions. Today it is dominant in most parts of Western Europe, all of central and South America, many parts of Asia and Africa. Continental legal system has influenced the laws of specific nations, the law of international organizations and international law. The main feature of this legal system is that all the laws are codified (i.e. written down).

The Common law system is one of the most influential legal systems of the world.

Before 1066 in England there was no legal system, instead it was based upon oral customary rules, which varied from region to region. In 1154, Henry II institutionalised common law by establishing a unified court system which was ‘common’ to the whole country. The common-law system exists in England, the United States, and other countries which were colonized by England. This makes it one of the most widespread legal systems in the world. Common Law system is mainly based on the case law or judicial precedent, this system doesn’t use legislation as a primary source of law instead legislation for them is a clarification of legal rules and principles which are essentially derived from case law/judicial precedents. In this type of legal system law is developed on a “case-by-case” basis. In the common law system the solution to a case becomes a part of the law. This concept is known as “Stare Decisis”.

Difference between Common and Continental Legal system:

In the Common legal system the judges have very broad interpretive power. However in the Continental legal system the judges serve as civil servants who receive salary and belong to an organization of judges [3] . In Continental legal system all the laws are written and codified, and unlike Common legal system they are not determined by the judges. Instead they are determined by the parliament. Legislation is the primary source of law and the court system is not adversarial (i.e. the judge takes an active part in the hearings/trials). Also in the Continental legal system any updates to the laws must be made through legislation or some other long process. While in the common law system laws can be changed/updated by single rulings. This allows the common legal system to develop faster than the continental legal system. In the Continental legal system there is a major difference between public and private law. Private law includes the rules governing civil and commercial relationships, whereas Public law consists of matters that concern the government. Similarly in Common legal system there is a difference in private and public law; however the process is slightly different.

Substantive and Procedural Law:

There are two main categories within law known as substantive law and procedural law. Substantive law deals with creating and defining the rights and obligations of individuals and parties. It refers to all categories of public and private law. On the other hand, procedural law is the body of legal rules which regulates the process of determining the rights and obligations of parties. Procedural law is also referred to as “adjective law” [4] . It is made up of state or federal statues, rules proclaimed by courts and standards established by constitutional law [5] . Common legal system pays more attention to procedural law than to substantive law. However, substantive law plays a vital role in Continental legal system.

Criminal Law and Procedure:

Criminal law is the body of rules and statues which define the conduct which is prohibited by the state/government because it may harm the society/public. It is a welfare that establishes punishment which will be imposed if this law is broken. Criminal procedure states the rule under which criminal cases are conducted. It involves investigation, prosecution, adjudication and the punishment of the crimes. A regular criminal proceeding, in the Continental legal system, is divided into three main parts: the investigating phase, the examining phase and the trial. The public prosecutor conducts the investigative phase and also takes an active part in the examining phase, which is supervised by the examining judge. This phase is mainly written and it determines whether there is a need for a trial or not [6] . The trial is a relatively brief and informal affair conducted by a judge without a jury. The defendant does not necessarily have the right to keep silent. Sometimes the trial does not require all the witnesses to be present and may last in excess of a year. On the other hand, in the Common legal system a criminal proceeding starts with a police investigation which is aimed at collecting evidence that will prove the defendant guilty. Then an adversarial trial is conducted before either a judge or a jury. The attorneys conduct the trial and try to convince the judge in their favour. The trial is continuous and the evidence against the defendant must be presented by live witnesses in court.

One of the basic differences in criminal procedure in Common legal system and Continental legal system is that, the judge in Continental legal system plays a more active role in determining the facts of the case (i.e. takes an active part in the proceedings) while the contrary is true for Common legal system. Also, the continental legal system relies more on written argument than on oral argument. However, in the common legal system everything in the trial is primarily oral.

Civil Law and Procedure:

Civil law is the body of rules that delineates the private law (e.g. contract law, property law, family law, etc.). It is opposed to criminal or public law. Civil procedure is the body of law that sets out the rules and standards that courts follow while judging civil lawsuits (i.e. non-criminal matters). It administers how a lawsuit/case will be carried out (i.e. the whole process). It is a general part of the private law and can be exercised by anyone to impose, redress or protect their legal rights. In the Continental law civil procedure is found in codes, whereas in the Common legal system it is found in rules of court made under statutory powers. Historically, in the Common legal system civil procedure lawsuits included a jury and a judge. The matter of law was reserved for the decision of the judge and the matters of fact for the jury. Even though, this practice is greatly discontinued in most of the modern Common legal countries the United States still employ it. The litigation is commenced by means of a document drawn up by the claimant which is then validated by the court. Hereafter, pleadings are followed by disclosure (i.e. disclosing evidence to the other party). Trial is usually lead by a hearing in which problems arising in pretrial procedure might be determined and attempts to compromise are made. In Continental legal system trial by jury is unknown and the litigation is usually conducted by a multijudge court. The issues of law are often determined by a series of hearings. The prominence is more on written evidence than on oral presentation [7] .

Difference between Criminal and Civil Procedure:

In criminal lawsuits, the litigation is always filed by the state, whereas in civil lawsuits a private party files the litigation and becomes the claimant. In criminal lawsuits a guilty defendant is punished by either imprisonment, fine paid to the state or death penalty (exceptional cases). On the other hand, the losing defendant in civil lawsuits is generally supposed to reimburse for the losses caused to the claimant. In criminal lawsuits the burden of proof is always on the state (i.e. the state must prove that the defendant is guilty), since the defendant is assumed to be innocent until proven guilty. However, in the civil lawsuits the burden of proof is initially on the claimant, but in some cases it shifts to the defendant. In criminal cases the defendant is protected by a number of protections which are specified in the constitution (or legislation). But in civil cases there are no protections offered to defendants. Another difference between criminal and civil lawsuits is that, criminal cases have to be proven beyond reasonable doubt. Civil cases only have to be proven on the balance of probabilities [8] .

It can be seen that there are many differences in the Common legal system and the Continental legal system. These differences exist not only in their historical background but also in their approach to legal matters. I personally believe the procedures are flexible and the parties to the case enjoy more rights and obligations in Common Law system, since the Judge refers to a previously held similar cases and the legislation is not codified. As we know, there are clearly many differences between Common and Continental legal systems, however it should be noted that in the recent times both systems have started to ‘converge’ in their use of the sources of law. As De Cruz (1999) mentions, in the recent times the English legal system has started to give more significance to legislation. On the other hand the Continental legal system has also started to rely on precedents, especially in German constitutional and French administrative courts. Thus, this leads us to think that there is a possibility of the legal systems ‘converging’ together. This concept is known as the “Convergence theory”. This might be possible in some aspects, however not completely because of the enormous difference in ideology, social and economic policies, morality and many other things.

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A case study analysis must not merely summarize the case. It should identify key issues and problems, outline and assess alternative courses of action, and draw appropriate conclusions. The case study analysis can be broken down into the following steps:

1. Identify the most important facts surrounding the case.
2. Identify the key issue or issues.
3. Specify alternative courses of action.
4. Evaluate each course of action.
5. Recommend the best course of action.

Let’s look at what each step involves.

1. Identify the most important facts surrounding the case.

Read the case several times to become familiar with the information it contains. Pay attention to the information in any accompanying exhibits, tables, or figures. Many case scenarios, as in real life, present a great deal of detailed information. Some of these facts are more relevant than others for problem identification. One can assume the facts and figures in the case are true, but statements, judgments, or decisions made by individuals should be questioned. Underline and then list the most important facts and figures that would help you define the central problem or issue. If key facts and numbers are not available, you can make assumptions, but these assumptions should be reasonable given the situation. The “correctness” of your conclusions may depend on the assumptions you make.

2. Identify the key issue or issues.

Use the facts provided by the case to identify the key issue or issues facing the company you are studying. Many cases present multiple issues or problems. Identify the most important and separate them from more trivial issues. State the major problem or challenge facing the company. You should be able to describe the problem or challenge in one or two sentences. You should be able to explain how this problem affects the strategy or performance of the organization. You will need to explain why the problem occurred. Does the problem or challenge facing the company comes from a changing environment, new opportunities, a declining market share, or inefficient internal or external business processes?

In the case of information systems-related problems, you need to pay special attention to the role of technology as well as the behavior of the organization and its management. Information system problems in the business world typically present a combination of management, technology, and organizational issues. When identifying the key issue or problem, ask what kind of problem it is: Is it a management problem, a technology problem, an organizational problem, or a combination of these? What management, organizational, and technology factors contributed to the problem?

o To determine if a problem stems from management factors, consider whether managers are exerting appropriate leadership over the organization and monitoring organizational performance. Consider also the nature of management decision-making: Do managers have sufficient information for performing this role, or do they fail to take advantage of the information that is available?

o To determine if a problem stems from technology factors, examine any issues arising from the organization’s information technology infrastructure: its hardware, software, networks and telecommunications infrastructure, and the management of data in databases or traditional files. Consider also whether the appropriate management and organizational assets are in place to use this technology effectively.

o To determine the role of organizational factors, examine any issues arising from the organization’s structure, culture, business processes, work groups, divisions among interest groups, relationships with other organizations, as well as the impact of changes in the organization’s external environment-changes in government regulations, economic conditions, or the actions of competitors, customers, and suppliers. You will have to decide which of these factors—or combination of factors—is most important in explaining why the problem occurred.

3. Specify alternative courses of action.

List the courses of action the company can take to solve its problem or meet the challenge it faces. For information system-related problems, do these alternatives require a new information system or the modification of an existing system? Are new technologies, business processes, organizational structures, or management behavior required? What changes to organizational processes would be required by each alternative? What management policy would be required to implement each alternative? Remember, there is a difference between what an organization “should do” and what that organization actually “can do”. Some solutions are too expensive or operationally difficult to implement, and you should avoid solutions that are beyond the organization’s resources. Identify the constraints that will limit the solutions available. Is each alternative executable given these constraints?

4. Evaluate each course of action.

Evaluate each alternative using the facts and issues you identified earlier, given the conditions and information available. Identify the costs and benefits of each alternative. Ask yourself “what would be the likely outcome of this course of action? State the risks as well as the rewards associated with each course of action. Is your recommendation feasible from a technical, operational, and financial standpoint? Be sure to state any assumptions on which you have based your decision.

5. Recommend the best course of action.

State your choice for the best course of action and provide a detailed explanation of why you made this selection. You may also want to provide an explanation of why other alternatives were not selected. Your final recommendation should flow logically from the rest of your case analysis and should clearly specify what assumptions were used to shape your conclusion. There is often no single “right” answer, and each option is likely to have risks as well as rewards.

Source of this article:

http://wps.prenhall.com/bp_laudon_essmis_6/21/5555/1422312.cw/content/index.html

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Health promotion: A Nursing Practice Problem

                                                          Introduction

Concept analysis is an approach that helps health practitioners to evaluate the characteristics or attributes of a given practice problem. It is a formal linguistic strategy to determine the defining characteristics. According to Kang (2011), a step-by-step approach to analyzing a concept related to nursing and/or health care is suggested to explicate and give a useful framework to develop the analysis. Health promotion is a frequently used concept, though often ill-defined. The current trends in health care and the focus on nurses to become health promoters stipulate that it is fundamental to clarify the health promotion concept in terms of its varied definitions, characteristics, and how it applies to the clinical and nursing practice.

                                 Summary of Concept Analysis Used in the Article

 Kang (2011) in his journal, a concept analysis of health promotion for women with urinary incontinence, identified the eight steps in concept analysis. For the first step – selection of the concept – health promotion was selected as the concept related to the practice problem of interest. The second step is the aim of analysis where the purpose of the study or analysis is determined. In the article, the aims of the health promotion concept were to establish the definition and develop a conceptual meaning of the existing research (Kang, 2011). The third step, which is identifying all uses of the given concept, involves identifying the myriad uses of the concept as cited in related literature, dictionary, thesaurus and uses by peers (Kang, 2011). The fourth step is to find out the defining attributes to determine what differentiates the health promotion concept from other related or similar concepts. The fifth step is to construct a model case to offer the useful application of an example case to real-life situations. In the sixth step, borderline and contrary cases are constructed to further clarify the current concept (Kang, 2011). In the seventh step, antecedents and consequences are identified and in the last step, empirical referents are defined.                                                                                                                            Similarly, in McCutcheon’s (2014) article, major steps of concept analysis were identified. The article selected health promotion in relation to the HPV infection. To further explicate the uses of the human promotion concept, the author demonstrated the application to populations and other situations. McCutcheon (2014) presented attributes of health-promoting behaviors as participation, empowerment, positive concept of health, and community. Antecedents, consequences, as well as empirical referents are presented, as are borderline, model, and contrary cases used to enhance concept clarification.

Definition of the Concept

In Concept analysis: Health-promoting behaviors related to Human Papilloma Virus (HPV) infection, McCutcheon (2014) define health promotion as an attempt to enhance individual and community’s health status; it is concerned with disease prevention and health education through support, skill training, advice and information-giving. According to Kang (2011), health promotion is the process that enables individuals to improve their well-being and health, facilitated by efforts to change behavior, enhance awareness and provide an environment that enhance good health practices.

How the Definition Differs from its Use

McCutcheon’s (2014) definition differs from its use in nursing and health care versus in other disciplines as it ignores the empirical authenticity and traditional conceptualization that many nurses consider health promotion to be majorly concerned with behavior and lifestyle change. In Kang’s (2014) article, the definition differs from its use as it emphasizes others (other than nurses) facilitating health promotion and de-emphasizes individual motivation.

Characteristics

Health promotion is identified with characteristics, including the empowering and enabling activity and process; healthy lifestyle and healthy behavior; multi-dimensional and multi-factoral process; inseparable with health care, and concerning health protection and disease prevention (Kang, 2011). In addition, health promotion is concerned with group/community and individual health (Kulbok, Thatcher, Park, & Meszaros, 2012).

Application

Health promotion is applied in the clinical and nursing practice when nurses assume the role of a nurse educator and develop ways through which individuals and communities or groups adopt healthy lifestyle to maintain an appropriate state of well-being (Kumar & Preetha, 2012).

Conclusion

On the concept analysis basis, health promotion can primarily be viewed as an artistic science, with goals that help human beings to enhance their well-being and health through environmental interaction. The current research has outlined the steps of concept analysis and clarified the meaning of health promotion concept as it relates to various scholars. The clarification of the existing concept’s theoretical definition and attributes provides a better understanding of the concept and brings it closer to its implications in clinical and nursing practice.

References

Kang, Y. (2011). A concept analysis of health promotion for women with urinary incontinence.    International Journal of Urological Nursing, 5(3), 107-114.

Kulbok, P.A., Thatcher, E., Park, E., & Meszaros, P.S. (2012). Evolving public health nursing       roles: Focus on community participatory health promotion and prevention. The Online        Journal of Issues in Nursing, 17(2), 1-14.

Kumar, S., & Preetha, G. (2012). Health promotion: An effective tool for global health. Indian     Journal of Community Medicine : Official Publication of Indian Association of  Preventive & Social Medicine, 37(1), 5–12.

McCutcheon, T. (2014). Concept analysis: Health-promoting behaviors related to Human  Papilloma Virus (HPV) infection. Nurs Forum, 49(4), 213-297.

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Leadership is an important factor in an organization’s success. Strong leadership is necessary to support an organization’s ongoing high performance ( Kakabadse, Kakabadse,  & Palgrave, 2009).  An organization cannot continue to run in an effective manner if there is not strong leadership. In order to ensure effective businesses progress, leaders should be in the frontline and employ strategic plans, which will help them to complete their roles and more importantly guide the workers in the right direction. Leadership is the fundamental key since it keeps the workers motivated and ensures businesses productivity. As an effective leader in the organization, I value my leadership ability and leadership qualities, which should form a strong bond which will unify the workers and management. As a leader, there are many roles which I am supposed to play in an organization, in order to ensure that the high-performance of my workers is sustained and the organization’s activities are running in an effective manner. Among many factors which are needed in the organization, as a leader I have to remain responsive and be in the position to sustain the workers’ performance which is necessary in meeting expectations (Sheard, Kakabadse, & Kakabadse, 2009).  My view toward high–performance is to create a productive team which is successful and productive in ensuring that every individual’s effort is directed by strategic goals.

In an organization, I will create a structure with a strategic focus which will attract and retain the best capable workers for the organization (Noe, Hollenbeck, Gerhart, & Wright,, 2011). Maintaining high- performance is my priority in the organization. As a leader I am also responsible for employee satisfaction. My role would be to facilitate productivity and success. The fundamental duty to value as a leader is to create and sustain a high-performance group. I value goal orientation as a key factor in achieving high-performance (Blazey, 2009). Setting SMART goals is key for worker’s achieving high-performance. As a manager, my goal setting will be useful to improve and maintain performance. I must ensure that each individual has a specific goal and sufficient ability to accomplish their mission. Each individual team member must accept the business targets of the organization.

In the organization, as a leader I may come across difficult situations in motivating workers. Using leadership skills, goal setting and strategic techniques to achieving the organization goals is the best approach I can use as a leader.  I have to set the goals, which will play a role in both external and internal aspects. I have to ensure that every team member is committed and has the adequate training to achieve their goals.  I have the responsibility to establish high-performance standards. Strategic goals will help me as a leader to plan and implement organizational performance standards, improving overall management practices.

In the organization Human Resources department (HR), there are important factors which I  must consider as a manager in retaining the high-performance employees.  HR plays a significant role and a support function in helping me to use strategic methods to maintain higher performance as well as in achieving the organization’s goals (Noe, Hollenbeck, Gerhart, & Wright, 2011).  I will work in conjunction with HR as to how my team members can best contribute to the organization’s success. As part of managing performance, I have the responsibility to evaluate the team members’ performance with respect to the goals that have been set and the specific job description. Performance management is a key factor in high-performance in the organization.  I will use this technique to make certain that team members’ activities meet organization needs.  In this role, I have the responsibility to direct the activities and job outcomes and their contribution to the organization.  In managing performance, compensations and benefits are the tools I will use to motivate and retain the high performing team members.  I must make wise decisions with regards to rewards, commissions, bonuses, retirement plans and insurance in order to engage, attract and retain the best workers.

I must ensure that rewards should recognize different levels of performance. To that end, I will establish a rewards plan that benefits both the employee and organization when the standard is met. As a leader I carry out the role of maintaining employee relationships.

A positive relationship with workers is a fundamental factor in encouraging employee development.  I must ensure that I deliver a powerful commitment by creating a culture where every organization member will understand how to meet the organization expectations.

The goal of my rewards plan is performance improvement and development selection. As I focus on monitoring performance, I am more effective with my own performance and competitiveness. Optimal management performance is the driving factor in my role as a leader.  Using my leadership skills, I will employ innovative methods, which move the organization forward to deliver better results as well as improved performance. Planning is a key factor in sustaining high-performance. Planning creates measurable goals at the same time informing the workers about the plan and the impact of their performance on the organization’s goals. On the same note, I have the responsibility to monitor my team members in terms of their progress through periodic assessment (Sheard et al, 2009).   By so doing, I obtain the opportunity to evaluate both positive and undesirable outcomes and find the best strategic method to solve the issues.  As a leader, I have the responsibility to monitor performance to determine if there are any developments that require adjustments in order for my team members to attain their goals. Therefore, as a leader I will ensure that there is availability of formal training, coaching and informal training in order to assist them in maintaining their high-performance. As a leader I must demonstrate my ability to work with a diverse workforce culture.

 In the framework of HR, as a manager I have the role to advise workers of their rights.  Focusing on the U.S. Constitution and Bill of Rights, I apply the ethical issues that are based on human rights in a moral universe (Noe et al, 2011).  I will ensure that they get the rights based on privacy and freedom and free consent. As a leader, I must make certain that the worker’s rights are not violated and there are equal opportunities within the organization. Focusing on human rights, I have the responsibility to manage diversity in order to ensure that there is no gender or culture discrimination within the work place.  Following the ideology that diversity leads to innovation and solves a wide range of problems, I ensure that members in the diverse groups share the different skills.

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