Anaya Nolan
The civil law system and the common law system are two prominent legal systems in the world. The civil law system is largely influenced by Roman Law and practiced in much of Europe and elsewhere in the world, including Germany, France, and Spain. On the other hand, the common law system is rooted in England and practiced in the United States. While civil law is more prescriptive and accessible, common law is more fluid and adaptable. Both systems have their own unique features, and it is challenging to conclusively determine which is superior as it depends on various factors and perspectives.
| Characteristics | Values |
|---|---|
| Accessibility | Civil law is more accessible to the general public as all the applicable legislations and regulations are readily available. |
| Consistency | Civil law is more logically consistent than common law, which can have conflicting precedents and rulings. |
| Appointment of judges | In common law, judges are appointed after successful legal careers, while civil law jurisdictions appoint graduates straight out of university. |
| Influence | Common law is rooted in England and practiced in the US, while civil law is practiced in much of Europe and elsewhere in the world. |
| Judicial decisions | In common law, decisions of the highest court can be overturned by that court or through legislation. |
| Contracts | Common law places importance on setting out all terms in a contract, while civil law has provisions implied in a contract. |
| Infrastructure projects | Common law is less prescriptive than civil law, so a government may need to enact specific legislation for infrastructure projects. |
| Business financial trouble | Common law emphasizes reorganization, while civil law focuses on liquidation. |
| Adaptability | Common law is adaptable and can change with new situations without the need for intervention from the legislator. |
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What You'll Learn
Civil law is more accessible
In civil law systems, the applicable legislation and regulations are available in one place, allowing a more generally educated individual to figure out what rules apply. For example, the French government website provides a comprehensive database of the codes that are written in a style that is easier to understand, also ensuring greater transparency of the judicial process.
In common law systems, it takes an expert to keep track of all the precedents, which ones overrule which, and figure out what actually matters at the time. This is because common law is largely based on precedent, or deference to previously published judicial opinions, which are often applied to very specific situations. This dynamic element of precedent enables common law to easily adapt and change to new situations without the need for intervention from the legislator, but it also means that the system is less accessible to the general public.
Civil law, on the other hand, is a codified system of law that originates from Roman law. Its most distinctive feature is the use of legal codes, which are large texts that are very general and applicable to many situations. The most famous example is the Napoleonic Civil Code of 1804. This codification is what makes civil law more accessible, as the law is not based on precedent to the same extent as common law.
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Common law is more consistent
In common law jurisdictions, such as England and the US, the emphasis is on seeking a reorganization when a business encounters financial difficulties, rather than liquidation. Judicial decisions are binding and can only be overturned by the same court or through legislation. Common law also provides extensive freedom of contract, with few provisions implied into the contract by law. This results in longer contracts compared to civil law, as all terms governing the relationship between the parties must be explicitly stated.
On the other hand, civil law is generally more prescriptive and is practiced in much of Europe and other parts of the world. It is rooted in Roman law and is characterized by legal codes, such as the Napoleonic Civil Code of 1804. These codes are general and applicable to a wide range of situations. Civil law is considered more accessible to the general public as the applicable legislations and regulations are readily available. For example, the French government website provides a comprehensive database of codes written in a straightforward style, ensuring transparency in the judicial process.
However, critics argue that civil law systems lack consistency. In a common law jurisdiction, judges are bound by precedent and must follow previous rulings, maintaining consistency. In contrast, civil law systems allow judges more latitude in interpreting the law, potentially leading to inconsistent rulings. This flexibility in civil law systems can result in unpredictable outcomes, as judges may rule in opposing directions on similar cases.
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Civil law is more prescriptive
In contrast, common law systems are less prescriptive, with fewer provisions implied into a contract. This means that it is important to set out all the terms governing the relationship between the parties in the contract itself, resulting in longer contracts than in civil law countries. Common law systems are typically found in countries that were former British colonies or protectorates, including the United States and the United Kingdom. Judicial decisions in these systems are binding and can only be overturned by the same court or through legislation.
The fluidity and adaptability of common law are considered one of its greatest strengths. However, due to its complex nature, it can be difficult to understand. For example, English common law is rooted in elitism, making it challenging for laypersons to comprehend both the legislation and precedent due to the complicated legal language used. Additionally, accessing the law and case law in common law systems can be difficult, as not all information is readily available to the public.
On the other hand, civil law is generally more accessible. For example, the French government website provides a comprehensive database of codes written in a style that is easier to understand, ensuring greater transparency of the judicial process. Civil law systems also have all the applicable legislations and regulations readily available, allowing a more generally educated individual to figure out what rules apply. This accessibility is further enhanced by the fact that civil law systems are less reliant on precedent, making it easier to keep track of the relevant laws and regulations.
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Common law focuses on reorganisation
Common law is a body of law based on court decisions and judicial precedent rather than statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that judges in common law jurisdictions are bound by previous rulings and must follow them when dealing with similar cases. Common law systems are prevalent in former British colonies or protectorates, including the United States, Canada, India, Australia, and England.
In common law jurisdictions, when a business faces financial difficulties, the focus is on seeking reorganisation rather than liquidation. This approach aims to keep the business as a going concern. For example, Chapter 11 in the US and UK administration procedures allow for reorganisation to prevent insolvency. This contrasts with civil law jurisdictions, which traditionally emphasised liquidation but are now permitting reorganisation before insolvency.
The emphasis on reorganisation in common law reflects its adaptability and focus on precedent. Common law evolves gradually through a series of incremental steps, allowing the law to change substantially over time while minimising disruptive effects. This incremental nature of common law allows for flexibility and the integration of new trends in legal, political, and social philosophy.
In the context of contracts, common law systems require a comprehensive outline of the terms governing the relationship between the parties. This results in longer contracts compared to civil law jurisdictions, where fewer provisions are implied, and ambiguities can be resolved by operation of law. The extensive freedom of contract in common law means that everything is permitted unless expressly prohibited by law.
While common law promotes stability and consistency through its reliance on precedent, it can also lead to complexities. Determining the applicable law in a given situation involves multiple stages of research and analysis, including locating relevant statutes and cases, extracting principles, and considering the weight of different court decisions. Additionally, the binding nature of higher court decisions can restrict the ability to reinterpret and revise the law without legislative intervention.
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Civil law is rooted in Europe
Civil law is a legal system rooted in Europe, specifically the Roman Empire. It was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900) as notable examples. Civil law is the most common legal system globally, practiced in about 150 countries.
The civil law system is often contrasted with the common law system, which originated in medieval England. Common law systems are typically found in countries that were former British colonies or protectorates, such as the United States. In a common law system, judicial decisions are binding and can only be overturned by the same court or through legislation.
Civil law, on the other hand, relies on legal codes as the primary source of law. These codes are systematic collections of interrelated articles, arranged by subject matter, that explain the principles of law, rights, and entitlements. The purpose of codification is to provide all citizens with a written collection of the laws that apply to them and that judges must follow.
Countries that follow a civil law system include those that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, such as much of Central and South America, Central and Eastern European countries, and East Asian countries.
In terms of accessibility, some argue that a civil law system is more accessible to the general public since all applicable legislations and regulations are readily available. In contrast, a common law system requires expertise to navigate due to the need to keep track of precedents and rulings.
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Frequently asked questions
Civil law is largely developed from Roman Law and is a codified system of law. Common law, on the other hand, is rooted in England and is influenced by precedent and previous judicial opinions.
Countries that follow civil law are typically former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America. Most of Central and Eastern Europe and East Asia also follow civil law. Examples include Germany, France, and Spain.
Countries that follow common law are typically those that were former British colonies or protectorates, including the United States. Examples include the UK and US.
Civil law is generally considered more accessible to the public as the applicable legislations and regulations are readily available. In contrast, common law can be difficult to access and understand due to its complex nature and the use of complicated legal language.
It is subjective and depends on various factors. While civil law is considered more accessible and consistent, common law is more flexible and adaptable to new situations. Some argue that a hybrid system is superior to both pure civil and common law systems.
