The common law and civil law systems are the products of two fundamentally different approaches to the legal process. Common law evolved in England in the 11th century and was later adopted in the USA, Canada, Australia, New Zealand and other countries of the British Commonwealth. Civil law on the other hand can historically be traced back to the code of laws compiled by Roman Emperor Justinian around 600 C.E. Authoritative legal codes with roots in these laws (or others) then developed over many centuries in various countries, leading to similar legal systems, each with their own sets of laws.
Both civil and common law are generally described in legal parlance as “Two paths leading to the same goal’’. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc.
What Is Common Law?
Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge.
Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. A jury of ordinary people without legal training decides on the facts of the case. The judge then determines the appropriate sentence based on the jury’s verdict.
What Is Civil Law?
Civil Law is codified. Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense. Such codes distinguish between different categories of law: substantive law establishes which acts are subject to criminal or civil prosecution; whereas procedural law establishes how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty.
In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws. The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes.
One of the basic characteristics of the civil law is that the courts main task is to apply and interpret the law contained in a code, or a statute to case facts. The assumption is that the code regulates all cases that could occur in practice, and when certain cases are not regulated by the code, the courts should apply some of the general principles used to fill the gaps.
Key Difference
In civil law, the main principles and rules are contained in codes and statutes, which are applied by the courts codes. Hence, codes and statutes prevail, while case law constitutes only a secondary source of law. On the other hand, in the common law system, the law has been dominantly created by judicial decisions, while a conceptual structure is often lacking. This difference is the result of different role of legislator in civil law and common law.
The civil law is based on the theory of separation of powers, whereby the role of legislator is to legislate, while the courts should apply the law. On the other hand, in common law the courts are given the main task in creating the law.
The civil law is based on codes which contain logically connected concepts and rules, starting with general principles and moving on to specific rules. A civil lawyer usually starts from a legal norm contained in a legislation, and by means of deduction makes conclusions regarding the actual case. On the other hand, a lawyer in common law starts with the actual case and compares it with the same or similar legal issues that have been dealt with by courts in previously decided cases, and from these relevant precedents the binding legal rule is determined by means of induction. A consequence of this fundamental difference between the two systems is that lawyers from the civil law countries tend to be more conceptual, while lawyers from the common law countries are considered to be more pragmatic.
One of the main differences between the civil law and common law systems is the binding force of precedents. While the courts in the civil law system have as their main task deciding particular cases by applying and interpreting legal norms, in the common law the courts are supposed not only to decide disputes between particular parties but also to provide guidance as to how similar disputes should be settled in the future. The interpretation of a legislation given by a court in specific case is binding on lower courts, so that under common law the court decisions still make the basis for interpretation of legislation.
On the other hand, in contrast to common law, the case law in civil law systems does not have binding force. The doctrine of stare decisis does not apply to civil law courts, so that court decisions are not binding on lower courts in subsequent cases, nor are they binding on the same courts, and it is not uncommon for courts to reach opposite conclusions in similar cases. In civil law the courts have the task to interpret the law as contained in a legislation, without being bound by the interpretation of the same legislation given by higher courts; this means that under civil law, the courts do not create the law, but only apply and interpret it.
In practice, however, the higher court decisions certainly have a certain influence on lower courts, since judges of lower courts will usually take into account the risk that their decisions would probably be reversed by the higher court if they contradict the higher court decisions. Judges normally try to avoid the reversal of their decisions by higher courts as if too many of their decisions are reversed their promotion may be adversely affected. Hence, even though in civil law systems the case law formally has no binding force, it is generally recognized that courts should take into account prior decisions, especially when the settled case law shows that a line of cases has developed.
Difference Between Civil And Common Law In Tabular Form
| COMMON LAW | CIVIL LAW |
| Common law is uncodified. There is no comprehensive compilation of legal rules and statutes. | Civil law is codified. The civil law is based on codes which contain logically connected concepts and rules, starting with general principles and moving on to specific rules. |
| In common law the courts are given the main task in creating the law. In other words they somehow usurp the role of legislature. | The civil law is based on the theory of separation of powers, whereby the role of legislator is to legislate, while the courts should apply the law. |
| The case law in common law systems have binding force. | The case law in civil law systems does not have binding force. |
| The interpretation of a legislation given by a court in specific case is binding on lower courts. | In civil law the courts have the task to interpret the law as contained in a legislation, without being bound by the interpretation of the same legislation given by higher courts. |
| In common law, a contract has no binding effect unless supported by consideration. In other words, a contract must be supported by something of value, such as the promise of a party to provide goods or services, or a promise to pay for goods or services. | In civil law a contract cannot exist without a lawful cause. Cause is the reason why a party enters a contract and undertakes to perform contractual obligations. |
| In common law countries, lawyers make presentations to the judge (and sometimes the jury) and examine witnesses themselves. | Lawyers still represent the interests of their clients in civil proceedings, but have a less central role. As in common law however, their tasks include advising clients on points of law and preparing legal pleadings for filing with the court. |
| In common law countries, judges have somewhat greater flexibility to fashion an appropriate remedy at the conclusion of the case. | In civil law countries, judges are often described as ’’investigators’’. They generally take the lead in the proceedings by establishing facts through witness examination and at the end of the case apply remedies found in legal codes. |
| Common law countries include: United States, England, India, Canada, Australia, UK, Kenya, Nigeria etc. | Civil law countries include: China, Japan, Germany, France, Spain, Russia etc. |
Conclusion
The most obvious distinction between civil law and common law systems is a that civil law system is a codified system, whereas the common law is not created by means of legislation but is based mainly on case law. The principle is that earlier judicial decisions, usually of the higher courts, made in a similar case, should be followed in the subsequent cases, i.e. that precedents should be respected. This principle is known as stare decisis and has never been legislated but is regarded as binding by the courts, which can even decide to modify it.