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 the 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, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and is the most common legal system in the world, practiced in about 150 countries. While civil law is generally more prescriptive, common law is more flexible and allows for judicial interpretation.
| Characteristics | Values |
|---|---|
| Basis | Common law is based on judicial precedent. |
| Civil law is based on legal codes. | |
| History | Common law originated in medieval England. |
| Civil law is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century. | |
| Influence | Common law is used in many countries that were formerly under English rule, including the United States. |
| Civil law is followed in nations like those in Spain, France, the Netherlands, Germany, and a few other regions of South and Central America, as well as in Eastern, Central, and East Asian nations. | |
| Written constitution | Civil law has a written constitution based on specific codes. |
| Scope | Common law is less prescriptive than civil law. |
| Civil law is more prescriptive than common law. | |
| Contracts | Common law has few provisions implied into a contract. |
| Civil law has several provisions implied into a contract. | |
| Predictability | Civil law regimes give importance to legal predictability and certainty as laws are expressed explicitly in codes and legislation. |
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What You'll Learn
Common law vs civil law systems
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 systems.
Common Law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and is now used in many countries that were formerly under English rule, including the United States, Canada, India, Australia, and New Zealand. Common law is less prescriptive than civil law, and it draws from institutionalized opinions and interpretations from judicial authorities and public juries. While there is no official legal code, the judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. This system promotes stability and consistency in the legal system. However, past decisions can continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent, which can make it difficult for marginalised groups to pursue favourable rulings.
Civil Law
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is followed in nations like Spain, France, the Netherlands, Germany, and regions of South and Central America, as well as in Eastern, Central, and East Asian nations. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. 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 standardised codes is to create order and reduce bias in the system.
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The role of precedent
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, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and is used in many countries that were formerly under English rule, including the United States, Canada, India, Australia, and New Zealand.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Today, civil law is practiced in about 150 countries and is the world's most common legal system.
In civil law, precedent does not serve as a legally binding source. Judges have less power and authority to interpret the law and must follow the legal codes and statutory law as the main sources of authority for legal decisions. However, in practice, judges tend to follow previous judicial decisions, and their interpretations can influence future interpretations of the law.
In summary, the role of precedent in common law and civil law reflects the underlying philosophies of each system. Common law relies on judicial precedent and stare decisis, valuing flexibility, stability, and the role of the judiciary in interpreting the law. Civil law, on the other hand, emphasizes comprehensive codification and the rule of law, prioritizing clarity, predictability, and the role of legislators in creating and interpreting the law.
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Codification
On the other hand, civil law is based on legal codes. It is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, particularly with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law takes the form of legal codes, with written constitutions based on specific codes such as civil code, corporate law, administrative law, tax law, and constitutional law.
The civil law system is generally more prescriptive than the common law system. In a civil law system, a legislator drafts a law and writes it into the code, and a court is required to follow that code. While the court's interpretation of a legal code does not bind it, and the court may later interpret the law differently, civil law is not based on judicial precedent, and prior court decisions are not binding on future decisions. This is in contrast to common law, where stare decisis, or the recognition of prior court decisions as legally binding precedent, is a central feature.
The comprehensive codification of civil law aims to create order and reduce bias in the legal system. By having explicit codes and legislation, civil law regimes emphasise legal predictability and certainty. In contrast, common law systems may result in inconsistent outcomes across different jurisdictions, as elements of common law may differ between districts.
While civil law is the world's most common legal system, practised in about 150 countries, common law is also widespread, particularly in former British colonies or protectorates. Countries that follow a common law system include Canada, India, Australia, and the United States. Civil law is followed in nations like Spain, France, the Netherlands, Germany, and regions of South and Central America, as well as in Eastern, Central, and East Asian nations.
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Origins of common and civil law
Common law and civil law are the two main types of legal systems in the world. Common law is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and is used in many countries that were formerly under English rule, including the United States, Canada, India, and Australia. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case. The judge presiding over a case determines which precedents apply to that particular case.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, particularly with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is based on legal codes and is common in most of Europe, Latin America, and some countries where European colonization occurred. It is characterized by its reliance on legal codes that function as the primary source of law, rather than judicial precedent.
Civil law systems are generally more prescriptive than common law systems. In a civil law system, a legislator drafts a law and writes it into the code, and a court is required to follow that code. However, the court's interpretation of the code does not bind it, and it may later interpret the law differently. Civil law also clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense.
Common law systems, on the other hand, are less prescriptive and provide extensive freedom of contract. Few provisions are implied into a contract under a common law system, so it is important to set out all the terms governing the relationship between the parties in the contract itself. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries, and its goal is to establish consistent outcomes by applying the same standards of interpretation.
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The impact on legal proceedings
The civil law system and the common law system are the two main types of legal systems in the world, with most countries adopting features from one or the other. The civil law system is the most common legal system, practiced in about 150 countries.
Common Law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and is used in countries that were formerly under English rule, including the United States, Canada, India, Australia, and the United Kingdom. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case. The judge presiding over a case determines which precedents apply to that particular case. While lower courts generally follow the example set by higher courts, they can modify or deviate from precedents if they are outdated or if the current case is substantially different.
The common law system is less prescriptive than civil law, with fewer provisions implied into a contract. Therefore, it is important to set out all the terms governing the relationship between the parties in the contract itself. Common law also provides extensive freedom of contract, with everything permitted that is not expressly prohibited by law.
Civil Law
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified starting in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch as notable examples. Civil law is followed in countries such as Spain, France, the Netherlands, Germany, parts of South and Central America, and East Asia.
The civil law system is more prescriptive than common law, with more provisions implied into a contract. Contracts in civil law jurisdictions tend to be shorter since inadequacies or ambiguities can be remedied or resolved by operation of law. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. 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 based on legal codes rather than judicial precedent, judges in practice tend to follow previous judicial decisions.
In summary, the main impact of the type of legal system on legal proceedings is the degree of reliance on judicial precedent. Common law systems heavily rely on precedent and case law, while civil law systems are characterized by their adherence to legal codes as the primary source of law.
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Frequently asked questions
A common law system is based on judicial precedent. It originated in medieval England and is used in many countries that were formerly under English rule, including the United States. Common law is a body of unwritten laws based on legal precedents established by the courts.
A civil law system is based on legal codes. It is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century. Civil law is followed in nations like Spain, France, the Netherlands, Germany, and parts of South and Central America.
Common law is less prescriptive than civil law. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case. Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators.
