Keith Mack
The legal systems of common law and civil law have distinct features and are currently in use in different parts of the world. Common law is based on judicial precedent and originated in medieval England, while civil law is based on legal codes and has its roots in Roman law. Common law is used in many former British colonies, including the United States (except Louisiana), while civil law is prevalent in continental Europe and some other countries, including former French and Spanish colonies. The advantages of common law include stability, consistency, and flexibility, while civil law offers clear rules and a comprehensive code of statutes. Both systems have their pros and cons, and some jurisdictions have adopted hybrid systems combining elements of both common and civil law.
| Characteristics | Common Law | Civil Law |
|---|---|---|
| Basis | Judicial precedent | Legal codes |
| Binding nature of court decisions | Decisions of the highest court are generally binding | Court decisions are not binding in future cases |
| Consistency | Stability and consistency | Inconsistency due to the subjective nature of decisions |
| Flexibility | More flexible as it can respond to societal changes | Less flexible as it requires lawmakers to pass changes in statutes and codes |
| Infrastructure projects | Governments may need to enact specific legislation to limit the scope of restrictions | Fewer legislative requirements due to the ability to remedy inadequacies or ambiguities by operation of law |
| Contractual provisions | Few implied provisions, requiring all terms to be set out in the contract | More implied provisions, allowing for shorter contracts |
| History | Originated in medieval England | Originated from Roman law |
| Geographical prevalence | Used in countries that were formerly under English rule, including the US | Used in countries that were formerly French, Dutch, German, Spanish or Portuguese colonies, including much of continental Europe and Central and South America |
| Role of judges | Less involved in questioning witnesses and hearing evidence | More involved in questioning witnesses and hearing evidence |
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What You'll Learn
Common law's flexibility and stability
Common law is based on judicial precedent and originated in medieval England. It is used in many countries that were formerly under English rule, including the US (except Louisiana, which was historically French and uses civil law). Common law has been described as flexible because it can respond to changes in society. It can address situations that lawmakers did not predict, and higher courts can overrule prior decisions without needing to wait for lawmakers to do so. This flexibility allows common law to adapt to the changing needs of the society it governs.
For example, landlord-tenant relationships and real estate contracting have evolved to encompass contemporary norms of consumer protection, and the introduction of zoning and land-use planning has addressed the problems of crowded cities. Common law's flexibility also enables the emergence of new forms of governance to adapt to social-ecological complexities, such as hybrid public-private collaborations to govern watersheds.
However, common law also provides stability and consistency because outcomes are based on previous case law rather than subjective viewpoints. This stability is enhanced by the principle of stare decisis, which requires courts to follow previous decisions when ruling on the same or closely related issues. Lower courts are typically bound by the decisions of higher courts in the same jurisdiction.
While common law is flexible and stable, it is important to note that it may not always be as flexible as needed in certain situations. For instance, small hotels may have to comply with the same fire regulations as much larger hotels, even though the contingency may not have been considered during the creation of the law.
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Civil law's clear rules for judges
Civil law, which originated in mainland Europe and is in use in many countries that were formerly colonies or protectorates of France, the Netherlands, Germany, Spain, or Portugal, is a codified system of law that is based on specific codes. These codes include civil code, corporate law, administrative law, tax law, and constitutional law. Civil law is more prescriptive than common law, and it relies on codes and statutes rather than case law and legal precedent to guide decisions.
Civil law systems have clear rules for how judges need to rule in many specific disputes. In civil law, the law is not based on judicial precedent, and prior decisions of a court are not binding on future decisions. Instead, a legislator drafts a law and writes it into the code, which the court is required to follow. While the court's interpretation of the code is not binding, civil law does provide a degree of consistency in that judges tend to follow previous judicial decisions.
In contrast, common law systems are based on judicial precedent, and court decisions are generally binding in future cases with similar facts. Common law originated in medieval England and is used in many countries that were formerly under English rule, including the United States. Common law has been described as more flexible than civil law since it can address situations not originally predicted by lawmakers and adapt to changes in society.
While civil law provides clear rules for judges to follow, it has been criticized for lacking consistency due to the lack of a strong stare decisis principle. On the other hand, common law has been criticized for being complex and requiring expertise to navigate the various precedents and rulings. Ultimately, both systems have their advantages and disadvantages, and many jurisdictions have adopted hybrid systems that borrow the best elements of both common law and civil law.
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Common law's origins and reach
Common law is a legal system based on judicial precedent. It originated in England in the medieval period, specifically in the centuries following the Norman Conquest of 1066. Prior to the Norman Conquest, England's legal business was largely handled by local folk courts, with various individual courts also existing across the land. The Norman Conquest brought about a period of colonial rule that produced change, establishing a unified legal system that gradually supplanted the local folk courts and manorial courts.
The English legal system was then spread across the British Isles, first to Wales (where it has been applied since 1536), then to Ireland, and later to overseas colonies, including North America. This process was continued by the later British Empire. The common law was so named because it was common to all the king's courts across England.
Today, common law is used in many countries that were formerly under English rule, including the United States. In the U.S., all states except Louisiana have a common law legal system. Louisiana stands as the only civil law state, as its system is based on the French civil code that was in place before the U.S. purchased the territory in the early 1800s.
Common law has also influenced the legal systems of other former British colonies, such as Canada, Hong Kong, and the member states of the Commonwealth (formerly the British Commonwealth of Nations).
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Civil law's codes and statutes
Civil law, also known as neo-Roman law, Romano-Germanic law, or Continental law, is a legal system that is based on a civil code or a comprehensive collection of statutes. These statutes are arranged by subject matter and outline the procedures for handling claims and the punishment for offences. Civil law is derived from the Corpus Juris Civilis, or the Justinian Code, which was based on Roman civil law.
The civil law system is prevalent in about 150 countries and is the most widespread legal system in the world. It is commonly used in continental Europe, Puerto Rico, the Philippines, Quebec, and Louisiana in the US. Louisiana's civil law is based on the French and Spanish civil codes, which were in place before the US purchased the territory in the 1800s.
Civil law codes are concise and broadly applicable, avoiding factually specific scenarios. They are designed to provide citizens with a written collection of laws that apply to them and must be followed by judges. These codes are enacted by a legislature and outline the principles of law, rights, and entitlements, as well as how legal mechanisms work.
Civil law is distinct from common law, which is based on judicial precedent and uncodified case law. Common law originated in medieval England and is used in many countries that were formerly under English rule, including the US (except Louisiana). In a common law system, prior court decisions are considered legally binding precedent, whereas in a civil law system, prior court decisions are not binding and do not need to be followed in future cases.
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Common law vs civil law in contracts
The terms "common law" and "civil law" refer to legal systems. Common law systems rely on past legal precedents and judicial rulings to decide cases, whereas civil law systems are based on legal codes and statutes. Common law originated in medieval England, while civil law has been used in many civilizations, including ancient Rome.
In the context of contracts, there are several key differences between common law and civil law systems. Firstly, common law systems provide extensive freedom of contract, with few provisions implied into the contract by law. This means that everything is permitted unless expressly prohibited by law, making common law less prescriptive than civil law. In civil law systems, there are generally more provisions implied into a contract, and less emphasis is placed on setting out all the terms governing the parties' relationship in the contract itself. Any inadequacies or ambiguities in the contract can be resolved by operation of law. As a result, contracts in civil law systems may be shorter than those in common law systems.
Another difference relates to the role of judges in each system. In common law systems, judges act as arbiters between parties presenting arguments, and their rulings are considered binding in future similar cases. This principle, known as stare decisis, promotes stability and consistency in the legal system. On the other hand, civil law systems have clear rules for how judges should rule in specific disputes, and their decisions are not binding in other cases, even if the facts are similar. Judges in civil law systems act more like investigators, interpreting the law and applying it to the case at hand.
Additionally, common law systems offer flexibility as they can address situations not originally predicted by lawmakers. Higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to pass changes in statutes. In contrast, civil law systems require lawmakers to make changes to statutes and codes, which can be a lengthy process.
In summary, while common law systems prioritize judicial precedent and flexibility, civil law systems focus on codified statutes and a more prescriptive approach to contracts and judicial rulings. Both systems have their advantages and disadvantages, and the choice between the two depends on the specific needs and preferences of a particular country or jurisdiction.
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Frequently asked questions
Common law is a legal system based on judicial precedent. It originated in medieval England and is used in many countries that were formerly under English rule, including the US (excluding Louisiana). Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous case law.
Civil law is a legal system based on legal codes. It originated in mainland Europe and is used in many countries that were formerly French, German, Spanish, Dutch, or Portuguese colonies, including Louisiana and Puerto Rico in the US, and much of Central and South America. Civil law systems have clear rules for how judges need to rule for many specific disputes.
Common law systems rely on case law and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Common law is less prescriptive than civil law, and courts in common law systems can address situations not originally predicted by lawmakers. Civil law systems have a written constitution based on specific codes, whereas common law systems do not.
Countries that follow a common law system are typically those that were former British colonies or protectorates, including the US (excluding Louisiana), and the UK.
Countries that follow a civil law system are typically those that were formerly French German, Spanish, Dutch, or Portuguese colonies. This includes Louisiana and Puerto Rico in the US, and much of Central and South America. Civil law is also used in much of continental Europe.
