Keith Mack
Civil law and common law are two distinct legal systems that form the basis of many countries' legal traditions. Common law, which originated in medieval England, relies heavily on past legal precedents and judicial rulings to decide cases. Civil law, on the other hand, is characterized by its reliance on codified statutes, ordinances, and legal codes as the primary source of law. While civil law judges interpret and apply the law, common law judges act as arbiters between parties, and their decisions are considered legally binding. This distinction is important as it influences how contracts are structured and how countries approach bankruptcy and infrastructure laws. Understanding these differences is crucial for international projects and relations, as well as for individuals facing legal issues in either system.
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What You'll Learn
- Civil law is rooted in the Roman Empire, common law in England
- Common law relies on judicial precedent, civil law on legal codes
- Common law countries have a unified legal profession, civil law countries have multiple legal occupations
- Common law is employed by the greatest number of people compared to any single civil law system
- Civil law systems are influenced by the French Revolution's efforts to limit the power of courts
Civil law is rooted in the Roman Empire, common law in England
Civil law and common law are two distinct legal traditions that form the basis of many countries' legal systems. Civil law, also known as Roman law, is rooted in the Roman Empire, while common law originated in England.
Civil law is characterised by its reliance on comprehensive written sets of laws, known as legal codes, which serve as the primary source of law. These codes were first established in the Roman Empire, with the most notable being the Corpus Juris Civilis, ordered by Emperor Justinian in the 6th century AD. This civil law tradition was later influenced by Napoleonic, Germanic, canonical, and feudal codes, with modern civil law systems exhibiting a sharp distinction between primary and secondary sources. Primary sources include enacted law, custom, and general principles of law, with enacted law being the predominant source. Civil law is interpreted rather than created by judges, and only legislative enactments are considered legally binding.
In contrast, common law developed in England, influenced by Anglo-Saxon law and, to a lesser extent, the Norman conquest, which introduced legal concepts from Norman law, rooted in Salic law. Common law is heavily reliant on judicial precedent and arises from uncodified case law resulting from judicial decisions. Prior court decisions are recognised as legally binding precedent in common law systems. Common law and civil law can be distinguished by their sources, with common law primarily based on decisions in cases by judges, while civil law is based on codified legal codes.
The European civil law tradition, which developed from the comprehensive code of law of the Roman Empire, is now practised in about 150 countries, making it the world's most common legal system. Civil law countries include those with a shared colonial past, such as former French, Belgian, Spanish, and Portuguese colonies, as well as countries that were never part of these European colonial empires, like China, Japan, and Russia.
Common law, on the other hand, is employed by the greatest number of people compared to any single civil law system. While civil law is more widespread by landmass and overall population, common law has a broader reach in terms of the number of people it covers. Common law is particularly prominent in the British legal tradition and has influenced the legal systems of many countries, including those in the Anglophone world.
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Common law relies on judicial precedent, civil law on legal codes
Common law and civil law are two of the four major legal traditions that form the basis of contemporary national legal systems. The other two are customary law and religious law.
Common law, also known as case law, relies on judicial precedent, which is a history of judicial decisions that form the basis of evaluation for future cases. There is no official legal code that can be directly applied to a case, so judges presiding over a case determine which precedents apply. Common law is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. The form of reasoning used in common law is known as casuistry or case-based reasoning.
Civil law, on the other hand, is based on legal codes. It is a comprehensive, codified set of legal statutes created by legislators. Civil law systems draw a sharp distinction between primary and secondary sources. Primary sources are enacted law, custom, and ‘general principles of law’, with the main source being the enacted (statutory) law. A code in a civil law system consists of general principles, arranged in order of importance. Civil law is regularly updated, but the goal of standardized codes is to create order and reduce bias in the system. While civil law is interpreted by judges, it is developed and made by legislators, and only legislative enactments are considered legally binding.
The two systems have different geographical distributions. Common law is employed by the greatest number of people compared to any single civil law system. It is used in many former British colonies, including Ghana and the United States, and forms the basis of the English legal system. Civil law, meanwhile, is the most widespread by landmass and overall population. It includes groups of countries with a shared colonial past, such as former French, Belgian, Spanish, and Portuguese colonies, as well as countries that were never part of these empires, such as China, Japan, and Russia.
In some cases, a single country may use both systems. For example, the United States operates under a dual system of both common and civil law. Additionally, in the European Union, civil law meets common law in a shared organizational structure.
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Common law countries have a unified legal profession, civil law countries have multiple legal occupations
The legal system of each country is shaped by its unique history and incorporates individual variations. The four major legal traditions are civil law, common law, customary law, and religious law. Civil law, also known as Roman law, is the most widespread by landmass and population. Common law, on the other hand, is employed by the greatest number of people compared to any single civil law system. Common law systems include Canada (excluding Quebec), Australia, New Zealand, the United Kingdom (England, Wales, and Northern Ireland), the United States (excluding Louisiana and Puerto Rico), and many other places.
Civil law and common law systems differ in several ways. One notable difference is that civil law countries recognize multiple legal occupations, such as judges, prosecutors, civil servants, and private practitioners, while common law countries have a unified legal profession. In civil law countries, each group has its own occupational associations and licensing criteria, and private practitioners typically constitute a relatively small proportion of the total legal profession.
In contrast, the Anglo-American concept of a 'lawyer' in common law countries encompasses a broader range of roles, including prosecutors and judges. Common law countries formally prohibit any degree of fluidity in roles, regarding such interchangeability as a conflict with due process and separation of powers principles. For example, in common law countries like the United States, the public prosecutor unilaterally makes filing and case-processing decisions, while investigative work is left to the police, and judging is handled by elected or appointed members of the judiciary.
The distinction between primary and secondary sources is more pronounced in civil law systems. Primary sources in civil law include enacted law, custom, and general principles of law, with enacted law being the predominant source. Case law, while important, holds a secondary position, and judges are bound primarily by the enacted law. In common law systems, case law by judges is a primary source of law, and legislative enactments may overrule judicial decisions or codify topics covered by ambiguous or contradictory decisions.
While civil law and common law systems have distinct features, there is some overlap and interaction between the two traditions. For example, in the European Union, civil law and common law coexist in a shared organizational structure. Additionally, the development of common law and civil law institutions has been influenced by classical Islamic law during the Islamic Golden Age.
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Common law is employed by the greatest number of people compared to any single civil law system
Common law and civil law are two of the four major legal traditions that form the basis of contemporary national legal systems. Civil law, which is derived from the Roman Empire's comprehensive code of law, is the most widespread legal system by landmass and population. On the other hand, common law, which originated in medieval England, is employed by the greatest number of people compared to any single civil law system. This is because common law is used in countries like the United States, which have a large population. Most countries, however, adopt features from one or both systems into their legal systems.
Common law is a body of unwritten laws based on legal precedents established by the courts. It is less prescriptive than civil law, and generally allows for more freedom of contract and flexibility in granting different types of security over assets. In a common law system, judicial decisions are binding, and everything is permitted unless expressly prohibited by law. Lower courts can deviate from precedents set by higher courts if they are outdated or if the current case is substantially different.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is more prescriptive than common law and is based on the concept of a comprehensive written set of laws covering various areas of law and explicit rules of procedure. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. It draws a sharp distinction between primary and secondary sources, with the main source being the enacted (statutory) law.
While the United States operates under both common and civil law, its courts primarily operate under common law. Common law is also used in countries that were former British colonies or protectorates, such as the United States. Civil law, meanwhile, is used in countries with a shared colonial past, such as former French, Belgian, Spanish, and Portuguese colonies, as well as countries that were never part of these colonial empires, like China, Japan, and Russia.
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Civil law systems are influenced by the French Revolution's efforts to limit the power of courts
The Constituent Assembly played a pivotal role in drafting projects for the complete reform of the court system. On March 24, 1790, the Assembly decided that the judicial apparatus required restructuring and discussed proposals from Thouret, Adrien Duport, and Sieyès. Their efforts culminated in the law of August 16, 1790, which focused on the reorganization of the justice system, particularly civil justice. This law was supplemented by additional legislation on criminal justice and the Penal Code.
The courts themselves also recognized their unpopularity and made attempts to reform. The court of the Châtelet in Paris consulted lawyers on potential reforms, while the high judicial court (Parlement) of Paris established a committee to study justice system reform. Lawers in Marseille even drafted a program for reorganization. However, these initial efforts were considered inadequate given the extent of complaints and desired changes documented in the records of the Estates General of 1789.
The reforms proposed in the Estates General records encompassed both general and specific aspects of the justice system. They included calls for a justice of the peace in each canton, intermediate courts, a court of justice for each province, and the abolition of courts of exception. Additionally, they demanded guarantees of individual liberty, publication of accusations and proceedings, the introduction of juries, less harsh sentences, and improved policing. These principles were later enshrined in the Declaration of the Rights of Man and influenced the Civil Constitution of the Clergy, passed in July 1790.
The French Revolution's impact extended beyond France, with Napoleon's Napoleonic Code spreading rapidly and marking the end of feudalism in the regions it took effect. This code recognized the principles of civil liberty and equality before the law, further shaping the legal landscape in Europe and beyond.
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Frequently asked questions
Civil law is derived from Roman law and is primarily based on comprehensive codification, whereas common law is derived from English common law and relies heavily on past legal precedents and judicial rulings.
Civil law is the most common legal system in the world, practiced in about 150 countries, including most of Europe (Germany, France, Spain, etc.), China, Japan, and South America (except Guyana).
Common law is employed by the greatest number of people compared to any single civil law system. Countries that follow common law include the United States, Canada, England, India, and Australia, which were all once subjects or colonies of Great Britain.
