Common Law Country's Transition To Civil Law

The world's national legal systems are generally based on one of four legal traditions: civil law, common law, customary law, and religious law. Civil law and common law are the two most widespread legal systems globally. While civil law is the most widespread by landmass and population, common law is employed by the greatest number of people compared to any single civil law system. This article will explore the differences between these two systems and discuss whether a common law country can switch to civil law.

Common law and civil law traditions

The two main types of legal systems in the world are Common Law and Civil Law, and most countries adopt features from one or the other into their own legal systems. Both civil law (also known as Roman law) and common law systems can be considered the most widespread in the world. Civil law is the most widespread by landmass and population, and common law is employed by the greatest number of people compared to any single civil law system.

Civil law is based on a comprehensive written set of laws covering various areas such as tax law, criminal law, and commercial law, with judges playing an active role in interpreting and applying these laws. In the civil law tradition, the judge's role is to lead the inquiry into the disputed matter, develop the evidence to reflect a reasonably complete set of facts, and then determine the appropriate section of codified law to give the proper outcome. In civil law, the judge is a very active participant in the development of evidence and the resolution of the dispute. The function of the jury is not as highly developed, and in many instances, the parties will have no right to a jury. Civil law systems draw a sharp distinction between primary and secondary sources. The main source is the enacted (statutory) law, which predominates in civil law systems. Only legislative enactments are considered legally binding, rather than legal precedents, as in common law.

Common law and equity are systems of law whose sources are the decisions in cases by judges. In common law, judicial decisions are binding – decisions of the highest court can generally only be overturned by that same court or through legislation. Common law developed in England, influenced by Anglo-Saxon law and, to a lesser extent, by the Norman conquest of England, which introduced legal concepts from Norman law, which, in turn, had its origins in Salic law. Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States.

It is worth noting that the legal system of each country is shaped by its unique history and incorporates individual variations. For example, during the Islamic Golden Age, classical Islamic law may have influenced the development of common law and several civil law institutions. Sharia law governs several Islamic countries, including Saudi Arabia and Iran, though most countries use Sharia law only as a supplement to national law.

The role of judges

In contrast, common law and equity systems of law derive their sources from decisions in cases by judges, and every system will have a legislature that passes new laws and statutes. Judicial decisions in common law systems are binding, and the decisions of the highest court can generally only be overturned by that same court or through legislation. The relationship between statutes and judicial decisions in common law systems can be complex, with statutes sometimes overruling judicial decisions or codifying topics covered by several contradictory or ambiguous decisions.

The role of the jury differs between the two systems as well. In civil law, the function of the jury is less prominent, and in many instances, the parties will have no right to a jury. In common law, the jury plays a more significant role in the judicial process.

While civil law systems are based on a comprehensive written set of laws covering various areas of law, including tax law, criminal law, and commercial law, common law systems are more likely to be found in former British colonies or protectorates, such as the United States.

It is worth noting that the legal system of each country is shaped by its unique history and incorporates individual variations, and many countries adopt features from both civil law and common law traditions.

Jury rights

In civil law systems, on the other hand, jury trials are rare, and a judge or panel of judges typically decides the facts and law to be applied. However, some civil law countries do employ mixed juries, where non-legal professionals are combined with professional judges. Civil law systems place greater emphasis on legal codes crafted by the legislature, and the statutes tend to be more detailed and continuously updated to specify all matters capable of being brought before a court.

The role of the jury in both common law and civil law systems is to determine whether a defendant is proven guilty. In the US, the Seventh Amendment's two clauses have generally been clear, except for the interpretation of the phrase "common law," which usually refers to law interpreted by judges in courts rather than laws created by legislative bodies. The Supreme Court clarified this in 1830, determining that "common law" was based on English common law, which also inspired the American legal system.

While the jury rights tradition in common law countries like the US is strong, it is not impossible for a lawyer from a common law country to work in a civil law country. International banking and arbitration often require common lawyers in civil law countries. Language skills and local qualifications are often more important for lawyers wishing to work in a different jurisdiction.

Contract law

The differences between common law and civil law systems are particularly relevant to contract law. Common law, which is prevalent in former British colonies and protectorates, including the United States, is characterised by its emphasis on judicial precedent and prior court decisions. In contrast, civil law, which is the most common legal system in the world, practised in about 150 countries, is based on a referable system of legal codes, rather than previous court decisions.

In contract law, the civil law system is more prescriptive, with less freedom of contract. Many provisions are implied into a contract by law, and parties cannot contract out of certain provisions. This means that less importance is placed on setting out all the terms governing the relationship between the parties in the contract itself. Inadequacies or ambiguities are resolved by operation of law, resulting in shorter contracts than in common law countries.

Common law, on the other hand, allows for extensive freedom of contract, with few provisions implied into the contract by law, except for provisions to protect private consumers. As a result, all the terms that govern the relationship between the parties need to be clearly defined in the contract itself, making for longer contracts than in civil law jurisdictions. In general, in common law, everything is permitted unless expressly prohibited by law.

In civil law jurisdictions, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts. Arbitration is not a choice unless previously agreed upon, and the rules can be ambiguous. For example, the concept of "financial equilibrium" is often unclear. In common law jurisdictions, the emphasis in bankruptcy is on seeking reorganisation, and liquidation is usually avoided to keep the business as a viable entity. Civil law jurisdictions, on the other hand, tend to focus on liquidation in bankruptcy processes.

In terms of international contracts, English law templates are often used, and English is the working language in most countries. However, local laws may still apply, and a local lawyer's input may be required.

Religious law

The Islamic legal system, consisting of Sharia and Fiqh (Islamic jurisprudence), is the most widely used religious law system and is one of the three most common legal systems globally, alongside common law and civil law. Sharia law is the primary legal system in several Islamic countries, including Saudi Arabia and Iran, while other countries use it to supplement national law. Islamic law has also influenced civil law, and some scholars argue that it influenced the development of common law during the Islamic Golden Age.

The use of Judaism and Halakha for public law is static and unalterable, precluding amendment through legislative acts or judicial precedent. In contrast, Christian Canon law is similar to civil law in its use of codes, and Islamic Sharia law is based on legal precedent and reasoning by analogy, making it similar to common law.

Some countries have mixed legal systems that incorporate elements of two or more legal traditions. For example, Nigeria primarily operates under a common law system but also incorporates religious law in its northern states. Other countries that have adopted civil or common law systems, particularly in Africa and Asia, have retained elements of religious law.

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