Anaya Nolan
Civil law and common law are two distinct legal systems with different approaches to the law. Common law, also known as case law, is a system based on judicial precedent and originates from medieval England. It is prevalent in countries that were formerly under English rule, including the United States. In contrast, civil law is based on codified legal codes and has its roots in Roman law and Napoleonic France. Civil law is widely used in continental Europe and countries that were formerly French, Dutch, German, Spanish, or Portuguese colonies. While civil law tends to be more prescriptive, common law offers greater freedom of contract and is generally less rigid. The differences between these legal systems impact areas such as contract interpretation and infrastructure projects, but they also share similarities, and in some jurisdictions, both common law and civil law influences can be found.
| Characteristics | Values |
|---|---|
| Countries that follow it | Civil law: Former French, Dutch, German, Spanish, or Portuguese colonies, including much of Central and South America, Central and Eastern Europe, and East Asia. Common law: Former British colonies or protectorates, including the United States. |
| Basis | Civil law: Legal codes. Common law: Judicial precedent. |
| Contracts | Civil law: More provisions implied into a contract by law, less freedom of contract. Common law: Fewer provisions implied into a contract, more freedom of contract. |
| Judges | Civil law: Tend to appoint graduates straight out of university. Common law: Tend to appoint judges with successful legal careers. |
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What You'll Learn
Common law countries vs. civil law countries
There are two main types of legal systems in the world, and most countries adopt features from one or the other into their own legal systems: Common Law and Civil Law. Both civil (also known as Roman) and common law systems can be considered the most widespread in the world. Civil law is the most widespread by landmass and population, while common law is employed by the greatest number of people compared to any single civil law system.
Common Law Countries
Common law is based on judicial precedent. Common law originated in medieval England and is used in many countries that were formerly under English rule, including the United States. Common law systems have greater flexibility in granting different types of security over assets. They also have the concept of trusts, which enable security interests to be held by a trustee for lenders in a syndicated loan situation without the need for formal transfer or re-registration of security interests in the names of new lenders. Common law countries include England and the US, and typically those that were former British colonies or protectorates.
Civil Law Countries
Civil law is based on legal codes. In civil law systems, a legislator (formerly often a monarch, but nowadays often a parliament) drafts a law and writes it into the code. A court is required to follow the legal code. Civil law is generally more prescriptive than a common law system. 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 also follow a civil law structure. Civil law countries include France and OHADA countries.
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Judicial precedent in common law
Common law and civil law refer to two different legal systems. Common law is based on judicial precedent, while civil law is based on legal codes. Common law originated in medieval England and is used in many countries that were formerly under English rule, including the United States. Judicial precedent is a key feature of common law, and it refers to the principle that judicial decisions are binding on future decisions of the same court and any court below it. This means that judges are generally obligated to follow the precedent established by prior decisions, also known as stare decisis. For example, in the case of Mr. Shears, a lawyer who was arrested for driving under the influence, the state Supreme Court was bound by its prior legal precedent and ruled that his DUI conviction alone could not be used to disbar him.
However, it is important to note that courts in common law countries can overrule prior decisions. For instance, in the case of Dobbs v. Jackson Women's Health Organization, the U.S. Supreme Court overruled its prior case of Roe v. Wade and held that states may ban abortion. While judicial precedent provides stability and uniformity, common law systems also allow for flexibility and change by enabling courts to deviate from previous rulings in certain circumstances.
In contrast, civil law systems give more authority to written laws and codes. In these systems, a legislator drafts and writes the law into a code, and courts are required to follow and interpret these legal codes. Civil law originated from Roman law and is used in many continental European countries, as well as in countries that were formerly French, Dutch, German, Spanish, or Portuguese colonies. While civil law is generally more prescriptive than common law, it is important to note that civil law courts may also consider previous court decisions as persuasive guidance, even if they are not legally binding.
The differences between common law and civil law systems have practical implications, especially in areas such as contract law. Common law systems emphasise extensive freedom of contract, with fewer implied provisions, while civil law systems imply many provisions into contracts and may have more standardised contract structures. Understanding these distinctions is crucial for legal practitioners and individuals seeking to navigate the legal systems effectively, whether it be in the context of infrastructure projects, PPP arrangements, or other legal matters.
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Civil law's basis in legal codes
Civil law, also known as Romano-Germanic legal systems, is based on Roman law. It is a codified system of law, with a comprehensive system of rules and principles arranged in codes. These codes are a systematic collection of interrelated articles, arranged by subject matter in a pre-specified order. The purpose of codification is to provide all citizens with a written collection of the laws that apply to them and which judges must follow. In civil law systems, a legislator drafts a law and writes it into the code. A court is required to follow the legal code but is not bound by a particular interpretation of it. Civil law codes are "comprehensive", meaning that anything not in the code is not law.
Civil law is primarily contrasted with common law, which influenced the legal traditions of English-speaking countries. Common law systems are based on judicial precedent and are generally less prescriptive than civil law systems. Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States. On the other hand, countries that follow 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, Central and Eastern Europe, and East Asia.
In civil law systems, there are separate constitutional, administrative, and civil court systems that interpret and opine on the consistency of legislation and administrative acts with the specific code. Civil law systems tend to have longer contracts than common law countries because many provisions are implied into a contract by law, and parties cannot contract out of certain provisions. Certain forms of infrastructure projects, such as concessions and affermage, have definite technical meanings and structures that may not be understood or applied in a common law country.
While common law systems place great weight on precedent, civil law judges tend to give less weight to judicial precedent. Civil law systems are generally well-organized and favour cooperation, order, and predictability. They are based on a logical and dynamic taxonomy, with civil codes avoiding excessive detail and containing general clauses that permit adaptation to change. Civil law codes provide a clear expression of rights and duties, with remedies that are self-evident. They are also simple and accessible to citizens, with advance disclosure of rules and general principles.
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Common law contracts vs. civil law contracts
The terms "common law" and "civil law" refer to two distinct legal systems. Common law is based on judicial precedent, with courts' rulings being binding on future decisions of the same court and any court below it. Common law originated in medieval England and is now used in many countries that were formerly under English rule, including the United States. Common law contracts require four essential components: offer, acceptance, consideration, and intention to create legal relations.
Civil law, on the other hand, is based on legal codes. In civil law systems, a legislator drafts a law and writes it into a code that courts are required to follow. Civil law has its origins in Roman law and is used in much of continental Europe, as well as in countries that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates. Civil law systems are generally more prescriptive than common law systems, with many provisions implied into a contract by law.
In terms of contracts, common law contracts are agreements between two or more parties that fall under common federal and state laws. Common law contracts require an offer, which must be communicated to the offeree to be valid, and acceptance, which must match the terms of the offer exactly. Additionally, both parties must exchange something of value (consideration) and intend to be legally bound by the contract. Common law contracts are often longer than civil law contracts because they set out all the terms governing the relationship between the parties.
Civil law contracts, on the other hand, have many provisions implied by law, and the parties cannot contract out of certain provisions. In civil law jurisdictions, certain forms of infrastructure projects, such as concessions and affermage, have definite technical meanings that may not apply in common law countries. Civil law contracts are generally shorter than common law contracts because they do not need to set out all the terms in detail.
In the United States, both common law and the Uniform Commercial Code (UCC) govern contracts, but they apply to different types of transactions. Common law applies to contracts related to services, real estate, insurance, and intangible assets, while the UCC primarily covers transactions involving goods and tangible objects. Understanding which law to apply can significantly impact business transactions and litigation.
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The origins of common and civil law
Civil law and common law are two distinct legal systems with different origins and characteristics.
Origins of Common Law
Common law originated in medieval England and is based on judicial precedent. It is a system of law that is less prescriptive and more flexible, allowing for everything that is not expressly prohibited. Common law is used in many countries that were formerly under English rule, including the United States, and countries that were former British colonies or protectorates.
Origins of Civil Law
Civil law, on the other hand, has its roots in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with notable examples being France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is the most common legal system in the world, practiced in about 150 countries. It is a codified system of law based on legal codes that function as the primary source of law. Countries that follow 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 and Central and Eastern European and East Asian countries.
Key Differences
One key difference between common law and civil law is their approach to contracts. Common law places importance on setting out all the terms governing the relationship between the parties in the contract itself, resulting in longer contracts. In contrast, civil law has many provisions implied into a contract by law, giving less freedom of contract, and resulting in shorter contracts. Additionally, in a civil law system, unless the contract specifies arbitration, it will be enforced by administrative courts.
Another difference lies in their treatment of judicial precedent. In common law, judicial decisions are binding, and courts generally follow stare decisis, meaning prior decisions are considered legally binding precedent. In civil law, while prior decisions may be considered, they are not binding, and courts are free to interpret and apply the law as they see fit.
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Frequently asked questions
Civil law is based on legal codes, whereas common law is based on judicial precedent. Civil law is a comprehensive, codified set of legal statutes created by legislators, whereas common law is a body of unwritten laws based on legal precedents established by the courts.
Civil law has been used in many civilisations, but the ancient Romans developed it in a very sophisticated manner. Civil law is still used in much of continental Europe.
Common law originated in medieval England. Today, common law is used in many countries that were formerly under English rule, including the United States.
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 also follow a civil law structure.
Countries following a common law system are typically those that were former British colonies or protectorates, including the United States.
