Anaya Nolan
The difference between case law and civil law lies in their respective approaches to legal precedent and the role of written decisions. Case law, also known as common law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the doctrine of stare decisis, which means to stand by things decided. In common law, courts interpret statutes and apply precedents from previous similar cases, and these precedents are considered legally binding. On the other hand, civil law is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified in the 19th century, with notable examples including France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law systems rely on legal codes as the primary source of law, and judges tend to give less weight to judicial precedent. While civil law is the world's most common legal system, practiced in about 150 countries, common law is prevalent in countries such as the United Kingdom, United States, Canada, and Australia.
| Characteristics | Values |
|---|---|
| Common law countries | United Kingdom, United States, Canada, Australia, New Zealand, South Africa, Singapore, Ireland, India, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan, Israel, Hong Kong |
| Civil law countries | About 150 countries, including France, Germany, Andorra, San Marino, Texas, California, Puerto Rico, and several Islamic countries |
| Common law | A body of unwritten laws based on legal precedents established by the courts |
| Civil law | A comprehensive, codified set of legal statutes created by legislators |
| Common law | Draws from institutionalized opinions and interpretations from judicial authorities and public juries |
| Civil law | Clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense |
| Common law | Courts explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments |
| Civil law | Decisions are generally shorter, referring only to statutes |
| Common law | Judges have a significant influence on the criteria that a jury uses to interpret a case |
| Civil law | The primary source of law is the law code, a systematic collection of interrelated articles arranged by subject matter in a specified order |
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What You'll Learn
Common law countries
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that originated in medieval England and is now used in several countries, including the United States, Canada, Australia, New Zealand, India, and Pakistan. Common law is deeply rooted in the doctrine of stare decisis, which means "to stand by things decided". This doctrine establishes that courts should follow precedents set by previous similar cases when deciding new ones. The presiding judge determines which precedents to apply, and lower courts are generally bound to follow the decisions of higher courts.
Common law courts generally provide detailed explanations of the legal rationale behind their decisions, including citations of legislation and previous relevant judgments. This analysis is called ratio decidendi and constitutes a precedent for other courts. However, common law systems do not have a formal code or collection of statutes that serve as the primary source of law. Instead, they rely on uncodified case law that arises from judicial decisions, recognising prior court decisions as legally binding precedent.
In contrast to civil law, which is a comprehensive, codified set of legal statutes created by legislators, common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. While civil law provides a clear framework for cases brought to court, procedures, and punishments for offences, common law focuses on applying consistent standards of interpretation to establish consistent outcomes.
The form of reasoning used in common law is known as casuistry or case-based reasoning. It was initially devised as a means of compensating someone for wrongful acts (torts) and developing the body of law recognising and regulating contracts. Common law procedures are handled through the adversarial system, where each party presents its case before an impartial judge who then makes a decision.
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Common law courts
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the doctrine of stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
Common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country in Westminster, near London. It was common to all the king's courts across England and established a unified legal system, gradually replacing local folk courts and manorial courts. The goal of common law is to establish consistent outcomes by applying the same standards of interpretation. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
In common law jurisdictions, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts, then locate any relevant statutes and cases, and then extract the principles, analogies, and statements by various courts. Finally, one integrates all the lines drawn and reasons given and determines "what the law is", and then applies that law to the facts. In practice, common law systems are considerably more complicated than this simplified description. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others.
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Civil law jurisdictions
Civil law, also known as the civil law system, is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). It is the world's most common legal system, practised in about 150 countries.
Civil law is a comprehensive, codified set of legal statutes created by legislators. In civil law jurisdictions, the primary source of law is the law code, a systematic collection of interrelated articles, arranged by subject matter in a pre-specified order. Codes explain the principles of law, rights, and entitlements, and how basic legal mechanisms work. The purpose of codification is to provide all citizens with a written collection of the laws that apply to them and which judges must follow. Law codes are laws enacted by a legislature, and while they are generally much longer than other laws, they set out general principles as rules of law.
Civil law judges tend to give less weight to judicial precedent. For example, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law. There is no doctrine of stare decisis in the French civil law tradition. Civil law codes must be changed constantly because the precedent of courts is not binding and because courts lack the authority to act if there is no statute.
Decisions in civil law jurisdictions are generally shorter, referring only to statutes. This is because civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes. Civil law jurisdictions place little reliance on court decisions, but they tend to generate a large number of reported legal opinions.
Some pluralist systems, such as Scots law in Scotland and types of civil law jurisdictions in Quebec and Louisiana, do not fit neatly into the dual common-civil law system classifications. Other states that were formerly part of the Spanish Empire, such as Texas and California, have retained aspects of Spanish civil law in their legal systems. Several Islamic countries also have civil law systems that contain elements of Islamic law.
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Civil law codes
Civil law, also known as the civil law system, is a legal system rooted in the Roman Empire. It was comprehensively codified and disseminated in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law is the world's most common legal system, practiced in about 150 countries.
Civil law is a comprehensive, codified set of legal statutes created by legislators. Civil law codes are laws enacted by a legislature, and they are systematically arranged by subject matter in a pre-specified order. 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. These codes explain the principles of law, rights, and entitlements, and how basic legal mechanisms work.
Civil law is distinct from common law, which is largely based on precedent and judicial decisions made in previous similar cases. Common law is not written down as official legal code, and instead relies on detailed records of similar situations and statutes. In common law systems, courts are bound by the doctrine of stare decisis, meaning that they are bound by their own previous decisions in similar cases.
In civil law jurisdictions, decisions are generally shorter, referring only to statutes. This is because civil law jurisdictions adhere to the tradition that the reader should deduce the logic from the decision and the statutes. Civil law codes must be constantly changed because the precedent of courts is not binding, and courts lack the authority to act without a statute.
While civil law is regularly updated, the goal of standardized codes is to create order and reduce bias in the system. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense.
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Common law origins
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the doctrine of stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. Common law originated in medieval England and was institutionalised by King Henry II in 1154, who created a unified system of law "common" to the country. It is now used in several countries, including the United States, Canada, Australia, and India.
Common law is primarily developed through judicial decisions rather than statutes. While it may incorporate certain statutes, it is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, often interpreting the wider legal principles. This analysis, called ratio decidendi, then constitutes a precedent binding on other courts.
The form of reasoning used in common law is known as casuistry or case-based reasoning. It draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law is particularly useful in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. It aims to establish consistent outcomes by applying the same standards of interpretation, promoting stability and consistency in the legal system.
However, it is important to note that common law is not without its challenges. The reliance on precedent can lead to the marginalisation or disempowerment of certain groups, as past decisions can shape future rulings until societal changes prompt a judicial body to overturn the precedent. This dynamic has posed difficulties for marginalised parties seeking favourable rulings until popular thought or civil legislation changes the interpretation of common law.
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Frequently asked questions
Case law, also known as common law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". Case law is primarily developed through judicial decisions rather than statutes.
Civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900) being notable examples. Civil law is a comprehensive, codified set of legal statutes created by legislators. Civil law is the most common legal system in the world, practiced in about 150 countries.
Case law is largely based on precedents set by previous judicial decisions, whereas civil law relies on legal codes as the primary source of law. Case law is unwritten, whereas civil law is codified. Case law is developed through judicial decisions, whereas civil law is created by legislators.
