Cameron Miranda
The legal systems of the world are characterised by their own unique set of rules and regulations, but broadly, most countries follow either a common law system or a Roman or civil law system. Common law is governed by formal orders known as precedents or past judicial decisions, whereas civil law, which is based on Roman law, is governed by codified statutes. The classical procedure of both Roman law and common law divided legal actions into two stages: the first was devoted to identifying the legal issue that divided the parties, and the second was devoted to proof and the decision of that issue in favour of one of the parties.
| Characteristics | Values |
|---|---|
| Basis of legal system | Common law is governed by formal orders known as precedents or past judicial decisions. Civil law is governed by codified statutes. |
| Influence | Common law is relatively immune from Roman influence. Civil law is based on Roman law. |
| Written law | Common law does not rely heavily on written codes, statutes, and ordinances. Roman law is divided into jus scriptum (written law) and jus non scriptum (unwritten law). |
| Binding nature | Common law relies on judicial precedents. Civil law/Roman law relies on legislative enactments. |
| Constitutional basis | Common law does not require a written constitution. Roman law relies on a written constitution. |
| Flexibility | Common law is more flexible and adaptable than Roman law. |
| Legal actions | Common law and Roman law both divide legal actions into two stages: issue identification and proof/decision-making. |
| Remedies | Common law and Roman law both offer remedies beyond monetary damages, which are discretionary and granted by magistrates. |
| Legal development | Common law and Roman law both focus on remedies rather than rules and emphasize particular forms of action. |
| Geographic influence | Common law is prevalent in countries like the USA, UK, and Canada. Roman law forms the basis of legal codes in continental Europe and its former colonies. |
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What You'll Learn
- Common law is governed by formal orders, or precedents, while Roman civil law is governed by codified statutes
- Common law is relatively immune from Roman influence
- Roman law is based on written codes, statutes and ordinances, while common law is not
- Common law in the US allows courts to strike down laws passed by legislators, but in the UK, only Parliament can do this
- Roman law was divided into 'written law' and 'unwritten law'
Common law is governed by formal orders, or precedents, while Roman civil law is governed by codified statutes
The legal systems of different countries are characterized by their own unique set of rules and regulations, which are designed to regulate the behaviour of the societies in which they are implemented. While some countries follow a common law system, others follow a Roman or civil law system of jurisprudence. A few countries have even developed a mixed legal system that combines the two.
The most distinct difference between the common and civil legal systems is that common law is governed by formal orders known as precedents or past judicial decisions, while civil law, including Roman civil law, is governed by codified statutes. Common law, therefore, relies on the assumption that the relevant law exists but is not yet articulated, and that its precise scope needs definition. This is in contrast to ancient Athens, for example, where law was seen as essentially the product of legislation.
In the common law system, the courts have the authority to strike down laws passed by legislators on the grounds of unconstitutionality or violation of federal law. Judicial precedents are considered binding. On the other hand, in the Roman civil law system, the onus rests solely on the legislative enactments, which are binding in nature. This type of legal system relies heavily on written codes, statutes, and ordinances that are very specific in nature. A written constitution is almost always mandatory.
While Roman law is the legal system of ancient Rome, it has influenced the development of law in most of Western civilization, as well as in parts of the East. It forms the basis for the law codes of most countries in continental Europe and their former colonies, including Latin America and Ethiopia. English and Anglo-American common law have also been influenced by Roman law, particularly in their Latinate legal glossary.
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Common law is relatively immune from Roman influence
The common law system is based on the idea that the law is constantly evolving and adapting to new situations and circumstances. This is in contrast to civil law, which is based on a fixed set of written codes, statutes, and ordinances. Common law is developed through a process of judicial precedent, where judges interpret the law and create new precedents based on previous decisions. This allows for more flexibility and adaptability in the legal system.
Roman law, on the other hand, has a long history and tradition, spanning over a thousand years of jurisprudence. It has had a significant influence on the development of law in Western civilization and beyond. Roman law was the legal system of ancient Rome, and it continued to be used and evolved over time, with the first 250 years of the current era considered the "classical period of Roman law". During this time, Roman law reached its greatest degree of sophistication and influence, and it was used as the basis for law codes in most countries of continental Europe.
Despite the influence of Roman law on legal systems around the world, common law remains relatively distinct. Common law and Roman law differ in their underlying philosophies and approaches to legal development. Common law focuses on flexibility and adaptability, while Roman law emphasizes a more rigid and codified approach. Additionally, common law systems, such as those in the United States and the United Kingdom, differ in their authority to strike down laws passed by legislators. In the USA, courts have the power to strike down laws on grounds of unconstitutionality, while in the UK, only Parliament has the authority to revoke or amend legislation.
While there are some similarities between the two systems, such as the two-stage legal procedure and the provision of remedies by magistrates, common law remains relatively immune from Roman influence in its overall structure and philosophy.
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Roman law is based on written codes, statutes and ordinances, while common law is not
Roman law, the legal system of ancient Rome, is based on written codes, statutes, and ordinances. It is derived from the Roman constitution and has influenced the development of law in most of Western civilisation, as well as in parts of the East. The Romans divided their law into 'jus scriptum' (written law) and 'jus non scriptum' (unwritten law). By 'written law', they meant not only laws derived from legislation but also laws based on any written source. The first written laws were 'leges' or enactments of the assemblies of the whole Roman people.
In contrast, common law is relatively immune from Roman influence. Common law is governed by formal orders known as precedents or past judicial decisions. It is based on custom and tradition, which can become rigid and difficult to change. Common law systems include those of the United States, the United Kingdom, Canada, and South Africa.
While Roman law is based on written codes, statutes, and ordinances, common law is based on precedent and custom. Roman law is characterised by its specificity and reliance on written sources, while common law is more flexible and focused on past judicial decisions.
However, it is important to note that there are also similarities between the two systems. Both Roman and common law divided legal actions into two stages: the first devoted to identifying the legal issue, and the second to proof and decision-making. Additionally, both systems produced narrow rules that were continually modified by further debates.
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Common law in the US allows courts to strike down laws passed by legislators, but in the UK, only Parliament can do this
Common law and Roman law are two distinct legal systems with their own unique rules and characteristics. While common law is prevalent in countries like the United States and the United Kingdom, Roman law, also known as civil law, forms the basis of legal codes in most countries of continental Europe and their former colonies.
One significant difference between common law and Roman law lies in their sources of authority. Common law is governed by precedents or past judicial decisions, where judicial precedents are binding. In contrast, Roman law or civil law relies on codified statutes and written codes, with legislative enactments being binding. This distinction is evident in the US and UK legal systems.
In the United States, the common law system grants courts the power to strike down laws passed by legislators if they are deemed unconstitutional or in violation of federal law. This power of judicial review allows the courts to act as a check on the legislative branch, ensuring that laws align with the US Constitution.
However, in the United Kingdom, the common law system operates differently. Only Parliament has the authority to revoke or amend legislation. The courts of law in the UK do not possess the same power as their US counterparts to strike down laws passed by legislators. This difference highlights a divergence in the application of common law principles between the two countries.
While both the US and the UK follow the common law system, the ability of courts to overturn legislation reflects a divergence in their legal traditions. This variation in the role and powers of the judiciary has likely shaped the legal landscape in each country, influencing the relationship between the judicial and legislative branches of government.
Despite the differences between common law and Roman law, some similarities and influences can be observed. Both systems recognise the importance of traditional rules, which can become rigid and challenging to change. Additionally, the Roman legal system has influenced the development of common law, particularly in the use of Latinate legal terminology.
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Roman law was divided into 'written law' and 'unwritten law'
The Roman legal system, which was in use in ancient Rome, has had a significant influence on the development of law in Western civilization and parts of the East. It is characterised by its division of law into two categories: written law (jus scriptum) and unwritten law (jus non scriptum).
Written law, or jus scriptum, encompassed not only laws derived from legislation but also any laws based on written sources. Various types of written law existed in ancient Rome. The first type consisted of leges (singular lex), which were enactments of the assemblies of the Roman people. While these assemblies were dominated by the wealthier classes, or patricians, the common people, or plebeians, had their own council where they enacted resolutions called plebiscita. Over time, these plebiscita became binding on all citizens and were considered equivalent to leges. Legislation served as a primary source of written law during the Roman Republic.
On the other hand, unwritten law, or jus non scriptum, referred to customs and traditions that were not formally codified. One example of unwritten law was the constitution of the Roman Republic, known as mos maiorum, which translates to "custom of the ancestors". This constitution was an unwritten, informal, and unofficial set of guidelines and principles passed down through precedent, constantly evolving over time.
The distinction between written and unwritten law in Roman jurisprudence is just one aspect of its complex legal system. Roman law also recognised the difference between ius commune ("common law") and ius singulare, as well as between ius publicum ("public law") and ius privatum ("private law").
While Roman law has had a significant influence on legal systems worldwide, the common law system is distinct in that it is governed by formal orders, precedents, and past judicial decisions rather than solely relying on codified statutes. Common law systems, such as those in the United States and the United Kingdom, differ in their approach to legislative authority and judicial precedent.
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Frequently asked questions
A common-law lawyer would probably say that civil law is based on Roman law, while common law is relatively immune from Roman influence. Civil law is governed by codified statutes, while common law is governed by formal orders known as precedents or past judicial decisions.
In the USA, the courts themselves have the authority to strike down laws passed by legislators on the grounds of unconstitutionality. In the United Kingdom, only Parliament has the authority to revoke or amend legislation.
The Romans divided their law into jus scriptum (written law) and jus non scriptum (unwritten law). Written law included laws derived from legislation and laws based on any written source. Unwritten law referred to custom.
In both systems, a plaintiff could only bring an action by obtaining a document from a magistrate identifying the precise type of claim that was being asserted.
Roman law has influenced the development of law in most of Western civilization and parts of the East. It forms the basis for the law codes of most countries in continental Europe and their former colonies, including Latin America and Ethiopia. English and Anglo-American common law were also influenced by Roman law.
