Gavin Howe
Civil law and common law are the two most widely used legal systems in the world. Common law is a body of unwritten laws based on legal precedents established by the courts. It is primarily contrasted with civil law, which is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century. Civil law is a comprehensive, codified set of legal statutes created by legislators. While civil law is the most common legal system in the world, practiced in about 150 countries, common law is followed by countries that were former British colonies or protectorates, including the United States.
| Characteristics | Values |
|---|---|
| Number of legal systems in the world | 2 |
| Types | Common Law and Civil Law |
| Common Law Countries | Former British colonies or protectorates, including the United States |
| Binding Decisions | Decisions of the highest court can generally only be overturned by that same court or through legislation |
| Freedom of Contract | Few provisions are implied into the contract by law in Common Law; Many provisions are implied into a contract by law in Civil Law |
| Legal System Roots | Common Law is rooted in England; Civil Law is rooted in the Roman Empire |
| Judicial Decisions | Common Law relies on judicial decisions; Civil Law relies on legal codes |
| Judicial Precedent | Common Law relies on stare decisis; Civil Law does not |
| Written Constitution | Civil Law has a written constitution based on specific codes |
| Binding Decisions | Only legislative enactments are considered binding in Civil Law |
| Judge-Made Law | Little scope for judge-made law in Civil Law; Common Law allows judges to make law in certain areas |
| Judge Appointments | Common Law judges are appointed after successful legal careers; Civil Law judges are appointed straight out of university |
| Law School | The United States is an outlier as, until recently, it was the only country where law school entailed a graduate education |
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What You'll Learn
- Common law is based on legal precedents, civil law is based on legal codes
- Common law is less prescriptive, civil law is more prescriptive
- Common law countries include the US and UK, civil law countries include Germany and France
- Common law countries have more freedom of contract, civil law countries have less
- Common law judges are usually appointed after legal careers, civil law judges are often graduates
Common law is based on legal precedents, civil law is based on legal codes
Common law and civil law are the two main legal systems used in the world today. Common law is a body of unwritten laws based on legal precedents established by the courts. It is less prescriptive than civil law, and its decisions are binding. There is extensive freedom of contract, and generally, everything is permitted that is not expressly prohibited by law. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is flexible and adaptable to unforeseen situations, as it can respond to changes in society.
Civil law, on the other hand, is based on legal codes and statutes. It is a comprehensive, codified set of legal statutes created by legislators. Civil law systems have clear rules for how judges need to rule for specific disputes. Civil law is generally more prescriptive than common law. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Civil law systems have separate constitutional, administrative, and civil court systems that interpret and opine on the consistency of legislation with the specific code.
Common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system. The doctrine of precedent, or stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. In common law, the judge presiding over a case determines which precedents apply. While lower courts generally follow higher court precedents, they can modify or deviate from them if they are outdated or if the current case is substantially different.
Civil law systems, in contrast, place less weight on judicial precedent. In civil law, judges use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardized codes is to create order and reduce bias in the system. However, in practice, civil law judges tend to follow previous judicial decisions, and constitutional and administrative courts can nullify laws and regulations with binding decisions.
Common law and civil law systems have different approaches to contracts. Common law systems have extensive freedom of contract, with few provisions implied by law, while civil law systems have less freedom of contract, with many provisions implied into the contract by law. In common law, it is important to set out all the terms governing the relationship between the parties in the contract itself.
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Common law is less prescriptive, civil law is more prescriptive
Common law and civil law are the two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. Common law is less prescriptive than civil law, which is more prescriptive.
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It relies on detailed records of similar situations and statutes because there is no official legal code that can be directly applied to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It promotes stability and consistency in the legal justice system.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is based on specific codes that cover various areas of law, such as corporate law, administrative law, tax law, and constitutional law. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishments for offenses. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardized codes is to create order and reduce bias in the system.
The differences in prescriptiveness between common law and civil law have practical implications. In a common law system, there is extensive freedom of contract, with few provisions implied into the contract by law. This means that it is important to set out all the terms governing the relationship between the parties in the contract itself. In contrast, civil law systems have less freedom of contract, as many provisions are implied into a contract by law, and parties may not be able to contract out of certain provisions.
The prescriptiveness of civil law also allows governments to enshrine specific protections for citizens in legislation. For example, in the context of infrastructure projects, civil law enables governments to prohibit service providers from cutting off water or electricity supply to those who cannot pay. This explicit protection may not be necessary in a common law system, where everything is permitted unless expressly prohibited by law.
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Common law countries include the US and UK, civil law countries include Germany and France
Common law and civil law are the two main types of legal systems in the world. Common law systems place great weight on precedent, while civil law judges tend to give less weight to judicial precedent. Common law systems recognise prior court decisions as legally binding, while civil law systems rely on legal codes as the primary source of law. Common law is also less prescriptive than civil law, which has more provisions implied into a contract by law.
Common law countries include the US and the UK, as well as other countries that were formerly British colonies or protectorates. The US federal system and all individual states except Louisiana and Puerto Rico follow common law. The UK also has a common law system, except for Scotland, which is bijuridicial.
Civil law countries include Germany and France, as well as many other countries in Continental Europe, such as Italy, Spain, and the Benelux countries. Civil law is the most common legal system in the world, practiced in about 150 countries. It is rooted in the Roman Empire and was comprehensively codified in the 19th century, with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900) being notable examples.
The distinction between common law and civil law countries is not always clear-cut, as countries often adopt features from both systems. For example, Louisiana is the only US state whose private civil law is based on the French and Spanish codes rather than English common law. Similarly, Quebec, a former French colony, follows the civil code of France in part while also incorporating elements of common law.
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Common law countries have more freedom of contract, civil law countries have less
Common law and civil law are the two primary legal systems in the world, with most countries adopting features from one or the other. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It relies on detailed records of similar situations and statutes because there is no official legal code that can be directly applied to a case. Judicial decisions are binding, and everything is permitted unless expressly prohibited by law. Common law systems are less prescriptive, providing extensive freedom of contract, with few provisions implied into the contract by law. This means that all the terms governing the parties' relationship must be clearly defined in the contract itself, resulting in longer contracts.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is based on specific codes, such as civil code, corporate law, administrative law, tax law, and constitutional law. Civil law systems are more prescriptive, with less freedom of contract. Many provisions are implied into a contract by law, and parties may not be able to contract out of certain provisions. This results in shorter contracts, as less importance is placed on setting out all the terms in the contract itself. Ambiguities or inadequacies are typically resolved by operation of law rather than being defined in the contract.
The distinction between the two systems is particularly relevant in the area of contracts. Common law countries, such as those that were former British colonies or protectorates, including the United States, have extensive freedom of contract. This means that parties have significant flexibility in drafting the terms of their agreement, as long as they do not contravene any express prohibitions. In contrast, civil law countries, often former French, Dutch, German, Spanish, or Portuguese colonies, have less freedom of contract due to the greater number of implied provisions.
The difference in the level of freedom of contract between common law and civil law countries has practical implications. For example, in common law countries, contracts tend to be longer and more detailed to encompass all relevant terms. Additionally, common law jurisdictions may have more flexibility in certain areas, such as bankruptcy, where the focus is on reorganization rather than liquidation. On the other hand, civil law countries may have well-defined legal concepts specific to their systems, such as "Concessions and Affermage" in the context of infrastructure projects, which may not be understood or applied in common law countries.
In summary, the contrast between common law and civil law countries regarding freedom of contract lies in the number of implied provisions and the level of prescriptiveness of each system. Common law countries have more freedom of contract due to their less prescriptive nature, while civil law countries have less freedom of contract because of the greater number of implied provisions and the more prescriptive nature of their legal system.
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Common law judges are usually appointed after legal careers, civil law judges are often graduates
Civil law and common law are the two main types of legal systems in the world, with most countries adopting features from one or the other. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is generally more prescriptive than common law and is based on specific codes (e.g. civil code, corporate law, administrative law, etc.) that enshrine basic rights and duties.
While there are differences between civil law and common law systems, they are not mutually exclusive. In fact, many countries have legal systems that incorporate elements of both common law and civil law. For example, while the United States is considered a common law country, it has also incorporated some elements of civil law, such as the extensive freedom of contract.
When it comes to the selection of judges, there are different approaches in common law and civil law systems. In common law countries, appointment is the most common method of selecting lower- and higher-court judges. These appointments are often made by the executive branch, such as the president or the governor, with the advice and consent of the legislative branch, such as the senate. In some cases, judges may be directly elected by the people or through competitive examinations. Common law judges are typically appointed after gaining legal experience, such as serving as attorneys, state or lower court judges, or law professors.
In civil law countries, judicial selection often involves a combination of appointment, competitive examination, and election. Civil law judges often begin their careers by joining the civil service and undergoing judicial training immediately after completing their university or law school education. This means that civil law judges are often graduates in their mid-twenties who have been recruited into training programs after scoring competitively on entrance examinations. These programs can last between six months to three years and include internships in judicial or government offices. While civil law judges may have less legal experience compared to their common law counterparts, they have a strong foundation in legal theory and knowledge of the specific codes and statutes that underpin the civil law system.
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Frequently asked questions
Civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, most notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is primarily based on written constitutions and specific codes, such as civil code, corporate law, administrative law, tax law, and constitutional law.
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is less prescriptive than civil law, and it draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is influenced by medieval English law and is practiced in countries that were former British colonies or protectorates, including the United States.
Common law relies heavily on judicial precedent, recognizing prior court decisions as legally binding. In civil law, judges tend to give less weight to precedent, and civil law systems are characterized by their reliance on legal codes as the primary source of law. However, civil law does consider precedent, and in practice, judges tend to follow previous judicial decisions.
Yes, there is a notable difference in the appointment of judges. In common law systems, judges are usually appointed after successful legal careers, while civil law jurisdictions tend to appoint recent university graduates.
No, civil law and common law are not mutually exclusive. While they have distinct characteristics and differences, countries may adopt features from both systems. For example, Louisiana in the U.S. has a mix of civil and common law influences.
