Cameron Miranda
There are two main types of legal systems in the world: common law and civil law. Common law is a body of unwritten laws based on legal precedents established by courts. It originated in medieval England and is used in many countries that were formerly under English rule, including the United States. Civil law, on the other hand, takes the form of legal codes and is derived from the Corpus Juris Civilis, overlaid by Napoleonic, Germanic, canonical, feudal, and local practices. It is used in much of continental Europe and is characterized by comprehensive codification. While common law systems value precedent and flexibility, civil law systems are more prescriptive, with judges giving less weight to precedent and relying primarily on statutory law.
| Characteristics | Values |
|---|---|
| Origin | Civil law originated from Roman law and was influenced by Napoleonic, Germanic, canonical, feudal, and local practices. Common law originated in medieval England. |
| Legal codes | Civil law is based on legal codes. Common law is based on unwritten laws and judicial precedent. |
| Judicial decisions | Civil law judges give less weight to judicial precedent. Common law promotes stability and consistency as it is based on previous caselaw. |
| Adaptability | Common law is more adaptable to changes in society. |
| Freedom of contract | Civil law implies many provisions into a contract by law, while common law has extensive freedom of contract. |
| Countries that use it | Civil law is used in much of continental Europe, China (except Hong Kong and Macau), and Louisiana in the US. Common law is used in the US (except Louisiana), UK, and countries that were formerly British colonies or protectorates. |
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What You'll Learn
Common law originated in medieval England
Common law and civil law are the two main types of legal systems in the world. Common law, which originated in medieval England, is named so because it was common to all the king's courts across England. It came into existence in the centuries following the Norman Conquest in 1066, establishing a unified legal system.
Before the Norman Conquest, much of England's legal business was carried out in local folk courts, with various individual courts also existing across the land. Urban boroughs and merchant fairs held their own courts, and large landowners held their own manorial and seigniorial courts. The Catholic Church also had its own court system that dealt with canon law, which included much of what is now considered family law.
The early development of case law in the 13th century has been traced to Bracton's On the Laws and Customs of England, with yearly compilations of court cases known as Year Books. These are the law reports of medieval England and are a principal source of knowledge regarding the development of legal doctrines, concepts, and methods from the 13th to the 16th centuries, when common law took on a recognisable form.
Common law is based on judicial decisions and embodied in reports of decided cases. It is a system that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. Judicial decisions are binding, and everything is permitted unless expressly prohibited by law. In contrast, civil law takes the form of legal codes and is derived from the Corpus Juris Civilis, overlain by Napoleonic, Germanic, canonical, feudal, and local practices. Civil law proceeds from abstractions and gives less weight to precedent, with civil law codes needing to be changed constantly.
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Civil law is based on legal codes
Civil law, also known as Romano-Germanic legal systems, is the most common legal system globally, with about 60% of the world's countries practicing it. It is based on a comprehensive system of rules and principles derived from Roman law and is usually arranged in easily accessible codes. These civil codes are adaptable, avoiding excessive detail and containing general clauses that allow for adaptation to change.
Civil law is often contrasted with common law, which originated in medieval England and is prevalent in former British colonies or protectorates, including the United States. Common law relies heavily on judicial precedent and arises from uncodified case law. In contrast, civil law takes the form of legal codes and gives less weight to judicial precedent.
The civil law tradition promotes cooperation between individuals and emphasizes individual freedom. It covers various aspects of life, excluding criminal law, commercial law, and labor law. Civil law codes, such as the French Code Civil and the German BGB, are the primary sources of law in civil law jurisdictions. These codes provide a clear expression of rights and duties, with remedies that are self-evident.
Louisiana is the only U.S. state with a private civil law heavily based on French and Spanish codes. Its private law was codified into the Louisiana Civil Code, which has since converged with American law in many areas. Similarly, Quebec law, also of French civil origin, has adapted to the public law and judicial system of Canadian common law while retaining civil law influences in private law.
Civil law codes are subject to constant change due to the lack of binding precedent in civil law jurisdictions. They are dynamic and flexible, allowing the judiciary to adjust rules to social change and new needs through interpretation and creative jurisprudence. This adaptability is a key feature that distinguishes civil law systems from common law systems.
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Common law is flexible and adaptable
Common law is a legal system that originated in medieval England and is currently used in several countries, including the United States, Canada, India, and Australia. It is a flexible and adaptable system that offers several benefits.
One of the key advantages of common law is its adaptability to unforeseen situations. When lawmakers create statutes and rules, they cannot anticipate all the scenarios in which courts may need to apply those laws. Common law allows courts to address situations that were not originally predicted by lawmakers. This flexibility enables the law to keep pace with societal changes and evolving technologies, ensuring that the legal code can be interpreted and applied to new contexts.
Another benefit of common law is its ability to respond to changes in society without requiring lengthy legislative processes. Unlike civil law systems, common law does not mandate that lawmakers amend statutes and codes to adapt to new circumstances. Instead, higher courts in the common law system can overrule prior decisions as "bad law" without waiting for legislative intervention. This feature of common law promotes efficiency and enables the legal system to adapt more swiftly to changing societal needs and values.
The flexibility of common law also stems from its reliance on case law and legal precedent. Common law, sometimes referred to as case law, is a body of unwritten laws based on legal precedents established by the courts. This means that common law draws from institutionalized opinions and interpretations of judicial authorities and public juries. As a result, common law can inspire new legislation and evolve over time, adapting to the needs and complexities of society.
In summary, common law is flexible and adaptable due to its capacity to address unforeseen situations, its efficiency in responding to societal changes, and its reliance on case law and legal precedent. These characteristics of common law promote a dynamic and responsive legal system capable of evolving to meet the needs of a changing world.
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Civil law is more prescriptive
Civil law and common law are the two main legal systems in the world, with most countries adopting features from one or the other into their own legal systems. Civil law, also called continental or Romano-Germanic 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 and disseminated starting in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law is often contrasted with common law, which originated in medieval England.
The more prescriptive nature of civil law is evident in the number of provisions implied into a contract under this system. Inadequacies or ambiguities in contracts can be remedied or resolved by operation of law, so less importance is placed on setting out all the terms governing the relationship between the parties in the contract itself. This often results in shorter contracts compared to those in common law countries. Additionally, civil law is more prescriptive in the sense that it leaves less room for freedom of contract. Many provisions are implied into a contract by law, and parties cannot contract out of certain provisions.
The more prescriptive nature of civil law has implications for governments, particularly in the area of infrastructure. A government may need to consider whether specific legislation is required to limit the scope of a certain restriction to allow a successful infrastructure project or to address a specific sector. Certain forms of infrastructure projects are referred to by well-defined legal concepts in civil law jurisdictions, such as "concessions" and "affermage," which may not be understood or applied in a common law country. This highlights the need for careful consideration when applying these terms in a legal context.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs outside of a formal, statutorily-defined process. Common-law marriage is typically the result of an agreement between two legally capable parties who consider themselves married and subsequently cohabit.
Common-law marriage is not recognised in all jurisdictions, but those that do not permit it will generally respect the validity of such marriages when lawfully entered in another state or country. In the United States, common-law marriage is recognised in seven states and the District of Columbia, while nine other states recognise it with some restrictions. In the states that allow common-law marriage, couples may have the same rights as those who went through a formal marriage process.
The requirements for common-law marriage vary, but some commonalities exist. Firstly, both partners must have the legal right or "capacity" to marry, meaning they must be at least 18 years old, of sound mind, and not already married to other people. Secondly, both partners must intend to be married and behave as a married couple, referring to each other in public as "partner", "spouse", or using the same last name. Lastly, the couple must live together for a period of time, although there is no statutory requirement for the length of cohabitation, and the court considers each case individually.
The concept of common-law marriage has a long history, dating back to ancient Greece and Rome, where marriages were private agreements between individuals and estates. In medieval Europe, marriage was under the jurisdiction of canon law, which recognised marriages even without any witnesses, as long as the parties stated they took each other as husband and wife. The Catholic Church attempted to regulate marriages at the Fourth Lateran Council in 1215, requiring all marriages to be announced in a church by a priest. However, clandestine or common-law marriages persisted until they were abolished in England and Wales by the Clandestine Marriages Act of 1753, which mandated that marriages be performed by a priest of the Church of England. Despite this, common-law marriage survived in colonial America and continues to be recognised in some US states today.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by courts. Civil law, on the other hand, takes the form of legal codes.
Common law is followed in countries that were former British colonies or protectorates, including the United States. The US, therefore, operates under a dual system of both common and civil law.
Common law promotes stability and consistency as it is based on previous case law. It is also efficient as court proceedings can be shorter, and adaptable to unforeseen situations.
Civil law is more prescriptive than common law, which means there are more provisions implied in a contract. This can offer greater protection for citizens.
A common-law marriage is a legal framework that allows couples to be considered married without having formally registered their union. Common-law marriage is not common in the US, but a few states do allow it.
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