Cecily Zamora
Common law and civil law are two of the most prevalent legal systems in the world. Common law, also known as case law, is a system in which the main body of law is formed by court opinions, with previous court decisions usually respected as precedent and applied to current decisions. Civil law, on the other hand, places more emphasis on written codes and statutes, and judicial decisions do not necessarily influence the outcome of current cases. While it is more common for countries to adopt features from either common or civil law, there are instances where countries have switched from a common law system to a civil law system or vice versa. This paragraph will explore whether any countries have made such a transition and the factors influencing their choice of legal system.
| Characteristics | Values |
|---|---|
| Number of countries with common law systems | 40 |
| Number of countries with mixed legal systems that include common law | 60 |
| Typical countries with common law systems | Former British colonies or protectorates, e.g. the United States, Canada, and Louisiana |
| Typical countries with civil law systems | France, the Benelux countries, Italy, Romania, Spain, and their former colonies |
| Basis of common law | Court opinions and legal precedent |
| Basis of civil law | Legislative enactments, i.e. legal statutes and codes created by legislatures |
| Common law contracts | More comprehensive, with many provisions implied into the contract by law |
| Civil law contracts | Less comprehensive, with fewer provisions implied into the contract by law |
| Infrastructure projects | Certain forms have well-defined legal concepts in civil law jurisdictions, e.g. "Concessions" and "Affermage" |
| Judicial decisions | Binding in common law, but not necessarily in civil law |
| Freedom of contract | Greater in common law than civil law |
| Actions permitted | In common law, everything is permitted unless expressly prohibited; in civil law, only actions specified in the civil code are permitted |
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What You'll Learn
Common law and its origins
Common law is a legal system that is based on judicial decisions and societal customs. It is deeply rooted in the concept of stare decisis, which means "to stand by things decided". In other words, common law follows precedents established by previous court decisions. When similar cases arise, courts typically align their reasoning with these past decisions. This is in contrast to civil law, where judges interpret the law rather than create it, and only legislative enactments are considered legally binding.
The common law system, as we know it, originated in England following the Norman Conquest in 1066. Prior to this, legal matters in England were handled by local folk courts, urban boroughs, merchant fairs, and manorial and seigniorial courts. The Norman Conquest established a unified legal system across the country, gradually replacing the previous system of local customs and laws that varied by locality. This new system was profitable for the government, as cases on forest use, fines, and forfeitures generated significant revenue.
The development of common law was influenced by Anglo-Saxon law, which had similarities to the laws of the Germanic peoples of northern Europe. During this period, local customs governed most matters, and the church played a significant role in government. Crimes were treated as wrongs, and compensation was made to the victim. While the Norman Conquest marked a shift towards a unified legal system, Anglo-Saxon law continued to exert influence, particularly in the form of legal concepts introduced by the Normans, which had their origins in Salic law.
Over time, the decisions of judges in common law cases became binding precedents, and the system of stare decisis emerged. This meant that judges were required to follow the interpretations and principles established by earlier judges in similar cases. The first attempt at a comprehensive compilation of common law was made by Lord Chief Justice Edward Coke in his 17th-century treatise, "Institutes of the Lawes of England". Common law has since evolved and spread beyond England, influencing the legal systems of the United States and most Commonwealth countries.
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Civil law's history
Civil law, also known as Roman law, is the most widespread legal system in the world by landmass and population. It is in force in about 150 countries and is the most common legal system. Civil law is a legal system rooted in the Roman Empire, strongly influenced by Roman law, which was considered the most intricate legal system before the modern era. Civil law was comprehensively codified and disseminated in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900).
Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law, or Continental law. It draws from various sources, including Roman, Germanic, ecclesiastical, feudal, commercial, and customary law. In the Holy Roman Empire, the emperors' idea of being the direct successors of the Roman Caesars facilitated the adoption of Roman law, which was collected in the Code of Justinian (Corpus Juris Civilis). While Roman law did not completely replace local laws, it was considered superior due to its rational rules of evidence and the specialized training of Roman-law jurists.
Civil law is characterized by its reliance on legal codes that function as the primary source of law. These codes are concise and broadly applicable, avoiding factually specific scenarios. They explain the principles of law, rights, and entitlements and provide a written collection of laws that judges must follow. Civil law judges interpret the law rather than develop or make it, and they give less weight to judicial precedent. Legislative enactments are considered legally binding, while judicial decisions are not.
The civil law system is often contrasted with the common law system, which originated in medieval England and is employed by the greatest number of people compared to any single civil law system. Common law relies heavily on judicial precedent and recognizes prior court decisions as legally binding. It is based on case law that arises from judicial decisions and is less focused on written decisions and precedent. 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 with origins in Salic law.
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Religious law's role
Religious law refers to the use of a religious system or document as a legal source. Religious law is one of the four major legal traditions that form the basis of contemporary national legal systems, along with civil law, common law, and customary law. The main types of religious law are Sharia in Islam, Halakha in Judaism, and Canon Law in some Christian groups.
The role and influence of religious laws vary across different countries and legal systems. In some cases, religious laws are intended as individual moral guidance, while in other cases, they serve as the foundation for a country's legal system. For example, during the Middle Ages, Canon Law was a significant influence on the legal systems of many European countries. Canon Law, or the legal principles and laws made and enforced by the Catholic Church, is the oldest continuously functioning legal system in the West, predating both European common law and civil law traditions. It developed alongside Roman law and indigenous law in Europe after the fall of the Roman Empire. Canon Law continues to have jurisdiction over certain church-related matters, such as the discipline of clergy, alteration of church property, and issues related to churchyards.
Sharia law, on the other hand, is the primary legal system in several Islamic countries, including Saudi Arabia and Iran. Sharia deals with a wide range of topics, including crime, politics, economics, and personal matters such as sexual intercourse, hygiene, diet, prayer, inheritance, and fasting. In some countries, Sharia law is used to supplement national law, and Muslim minorities in Western countries have introduced Sharia family law to govern their own disputes with varying levels of success.
Halakha, the Jewish law, is known for its static and unalterable quality, which means it cannot be amended through legislative acts or judicial precedent. Confucianism, often considered a philosophy rather than a religion, has also served as a basis for law and social control in Chinese jurisdictions, similar to ancient Roman law.
While civil law and common law are the most widespread legal traditions globally, religious laws continue to play a significant role in shaping the legal systems of many countries. The influence of religious laws on common law and civil law institutions is also evident, with Canon Law influencing the genesis of various civil law institutes, and Islamic Sharia law potentially influencing the development of common law during the Islamic Golden Age.
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Customary law
The recognition of customary law has been challenged when it reflects colonial influence rather than indigenous mores, and when it fails to comply with international human rights norms. Many national governments have taken measures to address these concerns. A central issue in the recognition of customary law is determining the appropriate methodology to identify which practices and norms constitute it. Scholars like John Comaroff and Simon Roberts have characterized customary law norms in their own terms, while others like John Hund have critiqued their theory and proposed alternatives.
Hund identifies two forms of rule scepticism associated with customary law. The first is the idea that because customary law derives from practice, there are no objective rules, as only behaviour informs their construction. This makes it difficult to distinguish between behaviour that adheres to the law and behaviour that is motivated by other factors. The second form of rule scepticism acknowledges that a community may have rules, but these rules are not arrived at deductively through legal or moral reasoning but are instead driven by the personal or political motives of those who create them.
Customary international law, a form of customary law, can be established by showing state practice and opinio juris, which refers to the belief that a practice is required by legal obligation.
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Differences between common and civil law
There are two main types of legal systems in the world: Common Law and Civil Law. Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States, England and Wales, and 49 US states. In a common law system, there is no official legal code, and judicial decisions are binding precedent. This means that decisions of the highest court can only be overturned by that same court or through legislation. Common law is also known as case law and is based on legal precedents established by the courts.
Civil law, on the other hand, is based on legal codes and is a codified system of law that originates from Roman law. Countries that follow a civil law system include former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern European countries, and East Asian countries. In civil law systems, legislators draft and write the law into the code, which the courts are required to follow. However, the interpretation of the legal code is not binding, and the court may interpret the law differently in future cases. Civil law codes are often comprehensive, meaning that anything not included in the code is not considered law.
Another difference between the two systems is the appointment of judges. In common law systems, judges are typically appointed after successful legal careers, while civil law jurisdictions tend to appoint recent university graduates. This can impact a judge's worldview and approach to legal disputes.
In terms of contracts, common law systems emphasize the importance of setting out all the terms governing the relationship between the parties in the contract itself, as there are few implied provisions. In contrast, civil law systems imply various provisions into a contract, and ambiguities or inadequacies can be resolved by operation of law. As a result, contracts in civil law countries tend to be shorter than those in common law countries.
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Frequently asked questions
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Civil law, on the other hand, focuses more on written codes and statutes, and places less emphasis on legal precedent. Judicial decisions are not considered legally binding in civil law, only legislative enactments are.
While it is not clear whether any countries have completely switched from common law to civil law, many countries have mixed legal systems that combine both common law and civil law, along with other forms of law such as religious or customary law.
Common law is used in approximately 40 countries and territories, and is followed almost exclusively by former British colonies. Examples include the United States and Canada, though the latter's Quebec region follows civil law. Other countries that use common law include England, where it originated, and those that were influenced by Anglo-Saxon law.
Civil law, which originated in France, is used in French, German, and Scandinavian civil law countries. French civil law is used in France, Benelux countries, Italy, Romania, Spain, and their former colonies, especially in Latin America, Africa, and the Middle East. German civil law is used in Germany, Austria, Russia, Switzerland, Estonia, Latvia, Bosnia and Herzegovina, Croatia, and several other countries. Scandinavian civil law is used in Northern European countries such as Denmark, Norway, Finland, Iceland, and Sweden.
