Common Law vs Civil Law: Definition, Legal Systems and Procedures and Judicial Precedent

What is Common Law and Civil Law?

Common Law is a legal system where court judgments and case precedents play a crucial role in legal interpretations, whereas Civil Law is a codified legal system where statutes and legal codes are the primary sources of law.

Introduction: Common Law vs Civil Law

Common Law vs Civil Law: The legal systems of the world are predominantly divided into two categories: common law and civil law. These systems have evolved over centuries, shaping the legal landscape of various nations.

Understanding the differences between common law and civil law is crucial for legal professionals, scholars, and individuals who interact with international legal systems.

Common Law vs Civil Law - Common Law and Civil Law - difference between Common Law and Civil Law

Common Law and Civil Law Origins and Historical Development

Common Law:

  • Originates from medieval England.
  • Developed through court decisions over time, hence the term “case law.”
  • Influences the legal systems of the United Kingdom, the United States (except Louisiana), Canada (except Quebec), Australia, Nigeria and other former British colonies.

Civil Law:

  • Derives primarily from Roman law.
  • Codified in comprehensive legal codes, providing all inclusive system of laws.
  • Predominant in continental Europe, Latin America, parts of Asia, and Francophone Africa.

Primary Sources of Common Law and Civil Law

Common Law:

  • Relies heavily on case law and judicial precedents.
  • Statutes are interpreted and applied in the context of previous judicial decisions.
  • Judges play a critical role in shaping the law through their interpretations.

Civil Law:

  • Primarily based on legal codes and statutes.
  • Judges apply these codified laws to cases without seeking to interpret or expand upon them.
  • Less emphasis on judicial decisions as a source of law.

Judicial Role and Precedents in Common Law and Civil Law

Common Law:

  • Judges have a more prominent role in shaping the law.
  • Precedents set by higher courts are binding on lower courts.
  • The doctrine of stare decisis (to stand by things decided) is a hallmark.

Civil Law:

  • Judges act more as investigators and apply the law more mechanically.
  • Judicial decisions are not legally binding precedents for future cases.
  • Greater emphasis on the written law and scholarly writings for guidance.

How are New Laws Created in Common Law and Civil Law Systems?

In common law systems, new laws primarily emerge through judicial decisions, where judges interpret and apply existing statutes and past precedents to individual cases, thereby setting new legal standards. In civil law, judges apply these codified laws to cases without seeking to create new legal principles, and the evolution of law is predominantly through legislative amendments or enactment of new statutes.

Over time, judicial decisions under English law collectively evolve into recognised common law.

In contrast, civil law systems rely mainly on comprehensive legal codes and statutes formulated by the legislative branch. These codes provide detailed rules covering various legal aspects.

Flexibility and Adaptability in Common Law and Civil Law Systems

Common Law:

  • More flexible, as judges can adapt the law to new challenges.
  • Judicial precedents can evolve with societal changes.
  • Offers detailed guidance through extensive case law.

Civil Law:

  • More rigid and predictable due to codification.
  • Adaptation to new situations can require legislative action.
  • Provides a systematic and comprehensive structure.

Difference between Common Law and Civil Law

AspectCommon LawCivil Law
OriginMedieval EnglandRoman Law
Primary SourceCase Law and Judicial PrecedentsCodified Laws and Statutes
Judicial RoleJudges interpret law and set precedentsJudges apply codified laws, less interpretation
PrecedentsBinding and integral to legal decisionsNot binding, rarely used as legal reference
FlexibilityMore flexible, adaptable to societal changesMore rigid, changes through legislative process
Legal ProceduresAdversarial systemInquisitorial system
Legal EducationFocus on case law and judicial decisionsFocus on understanding comprehensive codes
Law MakingThrough judicial rulings and interpretationsThrough legislative enactment of codes
Contract LawCase law is significantCodified and detailed
EquitySeparate system for fairnessIntegrated within legal codes
Common Law vs Civil Law

Legal Procedures and Terminology

Common Law:

  • Adversarial system in legal procedures.
  • Greater focus on oral arguments and cross-examinations.
  • Unique legal terminologies and procedures, such as “tort” and “equity.”

Civil Law:

  • Inquisitorial system in legal procedures.
  • More reliance on written documents and less on oral presentations.
  • Different terminologies, for instance, “delict” for tort.

How is Evidence Treated Differently in Common Law and Civil Law Courts?

In common law courts, evidence is typically presented and challenged by opposing parties in an adversarial setting, with a strong emphasis on oral testimony and cross-examination. Civil law systems usually have stricter rules about what evidence is admissible, emphasising legal documentation over witness testimony.

Under common law, judges and juries evaluate the evidence presented.

In civil law courts, the process is more inquisitorial; judges play a significant role in investigating and determining what evidence is relevant, often relying on written submissions and reports.

Application of Common Law and Civil Law in Contract Law and Property Law

Common Law:

  • In contract law, more emphasis on case law and judicial interpretations.
  • Property law is heavily precedent-based, with numerous specific rules.

Civil Law:

  • Contract law is extensively codified, providing detailed rules for various contract types.
  • Property law is governed by comprehensive codes, focusing on broad principles rather than case-specific rules.

How does the Inquisitorial System in Civil Law Differ From the Adversarial System in Common Law?

The inquisitorial system, prevalent in civil law jurisdictions, involves a more active role for the judge, who leads the investigation, examines evidence, and questions witnesses.

The focus is on uncovering the truth through a collaborative process, with less emphasis on a contest between opposing parties.

Conversely, the adversarial system, characteristic of common law jurisdictions, pits two opposing parties against each other, with each side presenting their case to an impartial judge or jury.

Here, the judge acts more as an arbiter ensuring fair play, and the truth is expected to emerge from the competition between the defence and the prosecution or plaintiff.

How Do Common Law and Civil Law Systems Approach the Concept of Equity?

In common law systems, equity refers to a set of principles developed by courts to mitigate the strict application of legal rules, ensuring fairness and justice. It operates alongside and complements common law.

Civil law systems, however, do not have a distinct concept of equity separate from the legal code. Instead, principles of fairness and justice are integrated into the codified laws themselves.

Thus, while common law uses equity as a parallel system for fairness, civil law embeds these principles directly within its legal framework.

Conclusion

While common law and civil law systems differ significantly in their approach, sources of law, and judicial processes, both aim to provide justice and legal certainty.

The choice between these systems often reflects historical, cultural, and societal values of the nations adopting them.

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