Keith Mack
Civil law and common law are two distinct legal systems with different approaches to law-making and enforcement. Common law, rooted in medieval England and practiced in countries like the US, UK, and former British colonies, emphasizes judicial precedent and allows judges to interpret and create laws. In contrast, civil law, prevalent in continental Europe, is based on comprehensive legal codes drafted by legislators, providing clear rules and procedures for courts to follow. While civil law aims for standardization and reducing bias, common law values adaptability and the ability to shape law through interpretation. These differences can lead to variations in areas like contract enforcement, security interests, and the appointment of judges, showcasing the unique characteristics of each legal system.
| Characteristics | Civil Law | Common Law |
|---|---|---|
| Based on | Legal codes | Judicial precedent |
| Influenced by | Rome, Napoleonic France | Medieval England |
| Used in | Continental Europe, Central and South America, Central and Eastern Europe, East Asia | Former British colonies or protectorates, including the US and UK |
| Contracts | Few provisions are implied into a contract | All terms governing the relationship between the parties to a contract must be set out in the contract itself |
| Judges | Appointed straight out of university | Appointed after successful legal careers |
| Flexibility | Less flexible | More flexible |
| Security over assets | Requires re-registering in the name of the new lender, involving additional registration costs and notarial fees | Trusts enable security interests to be held by a trustee for lenders without the need for formal transfer or re-registering |
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What You'll Learn
Historical origins
The civil law system is a codified system of law that takes its origins from Roman law. Civil law countries are based on Rome and Napoleonic France. Countries following a civil law system are typically those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America, most of Central and Eastern European and East Asian countries.
Common law, on the other hand, originated in medieval England. Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States. Common law countries base their legal systems on medieval England, and as such, they will have lots of similarities in their legal systems.
In common law countries, judges can make laws in certain areas. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is based on judicial precedent and decisions of the highest court can generally only be overturned by that same court or through legislation. Common law systems have greater flexibility in granting different types of security over assets.
In civil law, the law is based on legal codes. A legislator drafts a law and writes it into the code, which a court is then required to follow. Civil law regularly updated, and the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case.
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Judicial precedent
The terms "common law" and "civil law" refer to legal systems. Common law systems are based on judicial precedent, allowing judges to make laws in certain areas. This means that judicial decisions are binding and can influence the criteria that a jury uses to interpret a case. In common law countries, everything is permitted unless it is expressly prohibited by law. Common law originated in medieval England and is used in many countries that were formerly under English rule, including the United States.
Civil law systems, on the other hand, are based on legal codes rather than judicial precedent. In these systems, a legislator drafts and writes the law into a code, which the court is required to follow. While civil law systems may interpret legal codes in a certain way, these interpretations do not bind the court, allowing for future interpretations to differ. Civil law countries typically include those that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates.
In the United States, the federal government and 49 states follow common law, while Louisiana follows civil law due to its historical influence by the French. Common law in the United States is influenced by English common law traditions, which allow judges to fill in the details and adapt the law to situations not previously contemplated by the legislature. For example, in the case of Mr. Shears, there was no Oklahoma legal code stating that a DUI conviction could indicate unfitness to practice law, but a prior court decision made this provision law.
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Contract provisions
Contract Formation and Terminology
Civil contracts are legally binding agreements between private parties, creating, modifying, or extinguishing obligations. They are typically used in private relationships and are governed by civil law systems. Civil contracts differ from common law contracts in formation, terminology, and enforcement focus. Civil law contracts rely on codified principles and statutory provisions, while common law contracts often rely on detailed clauses, judicial precedents, and past rulings to mitigate ambiguity.
Implied Provisions and Freedom of Contract
Civil law systems imply many provisions into a contract by law, and parties may not be able to contract out of certain provisions. This results in less freedom of contract compared to common law systems, which generally allow extensive freedom of contract. In common law, few provisions are implied, and everything that is not expressly prohibited is typically permitted.
Interpretation and Judicial Decision-Making
Civil law judges interpret contracts based on the presumed intent of the parties and considerations of fairness, even if it requires departing from the contract's wording. In contrast, common law judges tend to interpret contracts based solely on the contract text and give weight to literal wording, past judicial decisions, and industry norms. Common law systems are generally less prescriptive than civil law systems, allowing for more flexibility in contract interpretation.
Default Rules and International Contracts
Civil law systems often have extensive default rules within their civil code that apply when specific contractual provisions are absent. International contracts, especially in cross-border transactions, may require hybrid drafting to satisfy both civil and common law systems. Care must be taken to avoid inserting irrelevant common-law concepts or terminology into contracts governed by civil law jurisdictions, as this can lead to confusion.
Country-Specific Considerations
It is important to note that contract law can vary between countries and states. For example, countries with a common law system, such as the United States and former British colonies, may have specific legislative protections or considerations for private consumers. In France, civil law includes mandatory notice periods before termination for breach of contract that cannot be avoided. Understanding the specific legal framework and contract law principles in the relevant jurisdiction is essential for effective contract drafting, negotiation, and enforcement.
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Judge appointments
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 former British colonies or protectorates, including the United States. Common law systems have greater flexibility in granting different types of security over assets and have the concept of trusts. Civil law systems, on the other hand, are typically found in former French, Dutch, German, Spanish or Portuguese colonies or protectorates, as well as in Central and Eastern European and East Asian countries. Civil law is a codified system that originates from Roman law. It does not have the concept of trusts and security interests generally need to be re-registered in the name of the new lender.
Now, when it comes to judge appointments, the process can vary depending on the country's legal system and the level of the court. In common-law countries, appointments are the most common method of selecting judges for lower and higher courts. The executive branch, such as the president or prime minister, often plays a significant role in appointing judges in these countries. For example, in the United States, federal judges are appointed by the president, while in the United Kingdom, the executive branch is involved in the selection process. In some countries, such as India, the process involves consultation with the Chief Justice and other judicial bodies.
In civil-law countries, the appointment process for constitutional court justices can be more elaborate, with an emphasis on a diverse composition of the court. The executive, legislative, and judicial branches may share appointments. For example, in Italy, the constitutional court includes jurists appointed by the judiciary, parliament, and the president. In Colombia, supreme court justices are chosen by members of the court from a list of candidates provided by a judicial council. Examination-based training systems are prevalent in civil-law countries, where judges may enter the lower judiciary through competitive examinations.
It is worth noting that in a few countries, judges are directly elected by the people or through a popular referendum. For instance, in Switzerland, federal judges are elected by parliament, while in Japan, supreme court justices are appointed by the government but are reviewed in a popular referendum every ten years.
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Geographical prevalence
The two main types of legal systems in the world are Common Law and Civil Law. Common Law systems are typically found in countries that were former British colonies or protectorates, including the United States, England and Wales, and much of the Commonwealth. Civil Law systems, on the other hand, are prevalent in 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. Louisiana in the United States is an exception, as it follows Civil Law due to its historical influence from French settlers.
In Common Law systems, judicial decisions are binding, and there is extensive freedom of contract. This means that contracts tend to be longer, as they must set out all the terms governing the relationship between the parties. Common Law is based on judicial precedent, allowing judges to make laws in certain areas and adapt them to situations not contemplated by the legislature. It draws from institutionalized opinions and interpretations from judicial authorities and public juries, aiming for consistent outcomes by applying the same standards of interpretation. However, this can lead to unfair marginalization or disempowerment of certain groups if outdated or biased decisions are not overturned by societal changes or civil legislation.
Civil Law, on the other hand, is based on legal codes. A legislator drafts and writes the law into the code, which the courts are then required to follow. Civil Law systems clearly define the cases that can be brought to court, the procedures for handling claims, and the punishments for offenses. These codes are regularly updated to create order and reduce bias in the application of laws. While Civil Law does not have the concept of binding precedent, it allows for flexibility in interpreting the law, and interpretations by the court do not bind future decisions.
The geographical prevalence of these legal systems has influenced their characteristics. Common Law countries share similarities in their legal systems, while Civil Law systems may appear more confusing to lawyers from Common Law countries and vice versa. The appointment of judges also differs between the two systems, with Common Law countries typically appointing judges after successful legal careers, while Civil Law jurisdictions tend to appoint recent university graduates.
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Frequently asked questions
Civil law is based on legal codes, while common law is based on judicial precedent. In civil law, prior court decisions are not binding, whereas in common law, they are. Common law countries tend to have more flexibility in granting different types of security over assets and have the concept of trusts. Civil law is regularly updated and aims to create order and reduce bias in the system.
Countries following civil law are typically former French, Dutch, German, Spanish, or Portuguese colonies, including much of Central and South America, Central and Eastern European countries, and East Asian countries. Common-law countries are usually former British colonies or protectorates, including the United States. The United Kingdom and the United States operate under a dual system of both common and civil law.
In common law, there are few provisions implied into a contract, so all the terms governing the relationship between the parties must be set out in the contract itself. This often results in longer contracts compared to civil law countries. Civil law countries have separate administrative laws governing PPP arrangements, and unless the contract specifies arbitration, it will be enforced by the administrative courts.
