Gavin Howe
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 the courts. Common law systems tend to give more weight to the separation of powers between the judicial branch and the executive branch. In contrast, civil law systems are more tolerant of allowing individual officials to exercise both powers. Civil law is a comprehensive, codified set of legal statutes created by legislators. While civil law is regularly updated, the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law systems and civil law systems |
| Countries that follow the system | Common law: US, Australia, Canada, Hong Kong, India, New Zealand, UK; Civil law: Germany |
| Sources of law | Common law: caselaw, legal precedent, institutionalized opinions, and interpretations from judicial authorities and public juries; Civil law: codes and statutes |
| Written constitution | Civil law: based on specific codes (e.g. civil code, corporate law, administrative law, tax law, constitutional law) |
| Binding decisions | Common law: decisions of the highest court are generally binding; Civil law: a judge's decision is not binding in later cases involving different parties |
| Freedom of contract | Common law: extensive freedom of contract; Civil law: less freedom of contract, with many provisions implied by law |
| Stability and consistency | Common law: promotes stability and consistency due to reliance on previous caselaw; Civil law: aims for consistency through standardized codes |
| Separation of powers | Common law: emphasizes separation of powers between the judicial and executive branches; Civil law: allows individual officials to exercise both powers |
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What You'll Learn
Common law systems are less prescriptive than civil law systems
Common law and civil law are the two main types of legal systems in the world. Common law systems are less prescriptive than civil law systems, which means that they offer more freedom of contract and less emphasis on codes and statutes. Countries that follow a common law system are typically former British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
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. Instead, the judge presiding over a case determines which precedents apply to that particular case. In common law systems, precedents are maintained over time through court records and are historically documented in collections of case law known as yearbooks and law reports.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It originated in mainland Europe and is based on Roman law. Civil law centres around a clear and detailed code of statutes that outline everything from the procedures for handling claims to the punishment for offences. This system is more prescriptive, with many provisions implied into a contract by law, and parties cannot contract out of certain provisions.
The difference in prescriptiveness between the two systems can be seen in the formation of contracts. In a common law system, there is extensive freedom of contract, with few provisions implied into the contract by law. It is important to set out all the terms governing the relationship between the parties in the contract itself. In contrast, a civil law system implies many provisions into a contract, and inadequacies or ambiguities can be resolved by operation of law. This often results in shorter contracts in common law countries compared to civil law countries.
Another distinction between the two systems lies in their treatment of judicial decisions. In common law systems, judicial decisions are generally binding, and decisions of the highest court can only be overturned by that same court or through legislation. This is known as the principle of stare decisis, where prior court decisions interpreting a statute become precedent and are therefore binding in future cases. In civil law systems, however, a judge's decision interpreting the text of the code is not binding in later cases involving different parties. While civil law systems may consider previous judicial decisions, they primarily rely on codes and statutes to guide their decisions.
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Common law is a body of unwritten laws
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is one of 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 systems are typically found in countries that were former British colonies or protectorates, including the United States, Australia, Canada, India, and New Zealand.
Common law is less prescriptive than civil law, which is a comprehensive, codified set of legal statutes created by legislators. In a civil law system, there is a clear outline of the procedures for handling claims and the punishments for offences. Civil law systems rely primarily on codes and statutes, while common law systems rely on caselaw and legal precedent to guide their decisions.
In common law systems, precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports. When a court makes a particular decision based on a specific set of facts, that decision becomes a precedent that the court must follow in future cases with similar facts. This principle, known as stare decisis, creates a predictable and consistent body of law.
The benefit of common law is that it promotes stability and consistency because everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints. However, the lack of a written code can make it challenging to find relevant caselaw, and the evaluation of future cases is based on the records of similar situations and statutes.
Common law sometimes provides the inspiration for new legislation. For example, the UK has long had a common-law offence of "outraging public decency", which was recently used as the basis for the Voyeurism (Offences) Act that criminalised "upskirting".
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Common law relies on legal precedent
Common law, also referred to as case law, is a body of unwritten laws based on legal precedents established by the courts. It is one of the two main legal systems used in the world, the other being civil law. Common law systems are typically found in countries that were former British colonies or protectorates, such as the United States, Australia, Canada, India, and New Zealand.
The principle of stare decisis is particularly important in common law systems because, unlike civil law, there is no official legal code that can be applied to a case. Instead, common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. This means that the judge presiding over a case must determine which precedents apply to that particular case. While older cases may be overruled by newer ones, they can still hold influence if they do not conflict with more recent decisions.
The records of previous court cases are maintained over time through court records and are historically documented in collections of case law, known as yearbooks and law reports. These records are essential for finding relevant case law and understanding the precedent for a particular legal issue. In the United States, private publishers, such as West Publishing, often publish law reports with additional indexing and references to key principles of common law, making it easier for lawyers and judges to find relevant precedents.
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Civil law systems rely on codes and statutes
Civil law and common law are the two main legal systems used throughout the world. Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Civil law, which originated in mainland Europe, is derived from the Corpus Juris Civilis, but is also influenced by Napoleonic, Germanic, canonical, feudal, and local practices.
Civil law systems are centred around a comprehensive code of statutes that outline everything from the procedures for handling claims to the punishment for offences. Civil law codes are concise and broadly applicable, typically avoiding factually specific scenarios. They are designed to be coherent and comprehensive pieces of legislation, which may introduce major reforms. Civil law codes are similar to the Restatements of the Law, the Uniform Commercial Code, and the Model Penal Code in the United States.
In civil law systems, there is a written constitution based on specific codes, such as civil code, corporate law, administrative law, tax law, and constitutional law. While legislative enactments are considered binding, there is little scope for judge-made law in civil, criminal, and commercial courts. Civil law judges tend to give less weight to judicial precedent and their decisions are not considered binding in later cases involving different parties.
Civil law systems are generally more prescriptive than common law systems, with many provisions implied into a contract by law. In contrast, common law systems are more flexible, as they are based on caselaw and legal precedent, allowing for changes in society. Common law systems originated in medieval England and are typically found in former British colonies or protectorates, including the United States, Canada, India, and Australia.
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Common law promotes stability and consistency
Common law is a body of unwritten laws based on legal precedents established by the courts. It is one of the two main legal systems used in the world, the other being civil law. Common law systems rely on case law and legal precedent to guide their decisions, whereas civil law systems rely on codes and statutes. Common law promotes stability and consistency through its reliance on previous case law and legal precedent.
In common law systems, precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports. After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law. This reliance on previous case law and legal precedent ensures that everyone involved knows that the ultimate outcome will be based on previous case law and not on subjective, personal viewpoints, thereby promoting stability and consistency.
The principle of stare decisis, a Latin phrase that roughly translates to "to stand by things decided", is central to common law systems. This means that courts and judges need to follow earlier decisions and rulings, or case law, when dealing with similar cases. For example, if a court makes a particular decision based on a specific set of facts, that decision is binding and must be followed in future cases with the same or similar facts. This predictability allows parties, especially commercial parties, to predict whether a proposed course of action is likely to be lawful or unlawful and provides some assurance of consistency.
In contrast, jurisdictions with weak respect for precedent must constantly redetermine fine questions of law each time they arise, making consistency and prediction more difficult. Parties in these jurisdictions have less guidance and must often leave a bigger "safety margin" of unexploited opportunities, resulting in more protracted procedures and higher legal fees.
Common law systems are also more adaptable to unforeseen situations as they can address issues not originally predicted by lawmakers. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes, which can be a lengthy process. Instead, common law systems can respond to changes in society and overturn outdated or biased precedents when societal changes prompt a judicial body to do so.
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Frequently asked questions
The two main branches of law are common law and civil law. Common law is a body of unwritten laws based on legal precedents established by the courts. Civil law is a comprehensive, codified set of legal statutes created by legislators.
Common law relies on caselaw and legal precedent to guide their decisions, whereas civil law relies primarily on codes and statutes. Common law is less prescriptive than civil law, which is generally more prescriptive.
Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints.
