Cameron Miranda
Common law and civil law are two different legal systems. Common law is a body of law based on court decisions and judicial precedent rather than statutes. It originated in England and is used in many former British colonies. Civil law, on the other hand, is a rules-based system that relies on codes and statutes rather than case law. It originated in mainland Europe and is the most widely adopted legal system in the world, practiced in about 150 countries. While common law is flexible and adaptable, civil law provides clear rules for judges to follow in specific disputes.
| Characteristics | Common Law | Civil Law |
|---|---|---|
| Definition | A body of unwritten laws based on legal precedents established by the courts. | A comprehensive, codified set of legal statutes created by legislators. |
| Basis | Judicial precedent | Legal codes |
| History | Originated in medieval England | Originated in France and Italy |
| Current Use | Used in countries that were formerly under English rule, including the US, UK, and former British colonies. | Used in continental European countries. |
| Flexibility | More flexible than civil law systems. | Less flexible than common law systems. |
| Judicial Decisions | Judicial decisions are binding and can influence future cases. | Prior court decisions are not binding on future decisions. |
| Contract Law | Extensive freedom of contract. | More prescriptive and may require specific protections to be enshrined in legislation. |
| Infrastructure Projects | Concepts such as Concessions and Affermage may not be understood or applied in the same way as in civil law countries. | Well-defined legal concepts for infrastructure projects. |
| Liquidation | More flexible in granting different types of security over assets. | Focuses on liquidation but some countries are reforming bankruptcy laws to allow for reorganization. |
| Trusts | Recognizes the concept of trusts, which provides security interests for lenders without the need for formal transfer or re-registering. | Does not have the concept of trusts, requiring additional registration costs and notarial fees for security interests. |
| Burden of Proof | In countries like England, the burden of proof in civil proceedings is generally on a balance of probabilities. | In civil law countries like the Maldives, the burden of proof is on the plaintiff to prove each element of the claim. |
| Civil vs. Criminal Law | In the US, "civil law" refers to disputes between individuals/organizations, while "criminal law" refers to offenses that can lead to incarceration. | In civil law countries, criminal and civil cases are separate, and "civil law" refers to a branch of law not including criminal law. |
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What You'll Learn
Common law is a body of unwritten laws based on legal precedents
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. Common law is based on stare decisis, which means that past judicial decisions form the basis of evaluation for future cases. There is no official legal code in common law, so judges rely on detailed records of similar situations and statutes when applying it to a case. The judge presiding over a case decides which precedents apply to that particular case.
The example set by higher courts is binding on cases tried in lower courts. Lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case. However, this rarely occurs. Common law gives extensive freedom of contract, with few provisions implied into the contract by law. This results in longer contracts compared to those in civil law countries.
In contrast, civil law is a comprehensive, codified set of legal statutes created by legislators. It is based on legal codes and originated in France and Italy. Civil law takes the form of legal codes such as the Napoleonic Code, which is based on Roman law. Civil law is generally more prescriptive than common law, with many provisions implied into a contract by law. This results in shorter contracts compared to those in common law countries.
The main difference between common law and civil law is that in common law countries, judges can create laws in certain areas, while in civil law countries, legislatures pass more detailed laws that are less reliant on the opinions of judges. Common law countries base their legal systems on medieval England, while civil law countries are based more on Roman and Napoleonic law.
Common law influences the decision-making process 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 as in civil law. However, elements of common law may differ between districts due to case-by-case traditions of individual jurisdictions.
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Civil law is a comprehensive, codified set of legal statutes
Civil law is regularly updated, but the goal of standardized codes is to create order and reduce bias in the system. Civil law takes the form of legal codes, such as the Napoleonic Code, originating in France and Italy. It is based on Roman civil law, with the Code of Justinian based on Roman law. Civil law is still used in much of continental Europe, and the Code of Canon Law of the Catholic Church is also based on civil law. Most of the countries that follow a civil law system are former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern Europe, and East Asia.
Civil law is a more prescriptive system than common law, with many provisions implied into a contract by law, and parties cannot contract out of certain provisions. This means that less importance is placed on setting out all the terms governing the relationship between the parties to a contract in the contract itself. In civil law, the contract will be enforced by the administrative courts unless the contract specifies that the parties have agreed to arbitration.
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.
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Common law originated in medieval England
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. Common law systems are typically found in countries that were former British colonies or protectorates.
In a common law system, there is no official legal code that can be applied to a case. Instead, judges rely on detailed records of similar situations and statutes, recognising prior court decisions as legally binding precedents. This means that judicial decisions are binding and can only be generally overturned by the same court or through legislation. Common law promotes stability and consistency in the legal system, as lower courts are bound by the example set by higher courts. However, lower courts can modify or deviate from precedents if they are outdated or if the current case differs substantially from the precedent case.
The common law system is contrasted with the civil law system, which originated in France, Italy, and Roman law. Civil law is a comprehensive, codified set of legal statutes created by legislators. It is based on legal codes rather than judicial precedent, and legislators draft and write the law into the code. While civil law is regularly updated, the goal is to create standardised codes to establish order and reduce bias in the legal system. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence.
Common law and civil law systems have different approaches to contracts. Common law systems have extensive freedom of contract, with few provisions implied into the contract by law. This results in longer contracts that set out all the terms governing the relationship between the parties. In contrast, civil law systems imply many provisions into a contract, and parties cannot contract out of certain provisions. This results in shorter contracts that do not need to set out all the terms in detail, as inadequacies or ambiguities can be resolved by operation of law.
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Civil law is based on Roman law
Civil law and common law are two different legal systems that exist in the world today. Common law is a body of unwritten laws based on legal precedents established by the courts. It is mostly followed in countries that were former British colonies or protectorates, including the United States. On the other hand, civil law is a comprehensive, codified set of legal statutes created by legislators. It is followed in countries that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern Europe, and East Asia.
One of the earliest forms of Roman law was the jus civile (civil law), which developed during the Roman Republic (753-31 BCE). This law applied only to Roman citizens and was bonded to religion. It was characterized by strict formalism, symbolism, and conservatism. The first legal text of Roman law was the Law of the Twelve Tables, which dates back to the mid-fifth century BCE. By the middle of the 3rd century BCE, the Romans developed another type of law, jus gentium (law of nations), which was applied to both citizens and foreigners.
Over time, Roman law evolved and was influenced by various sources, including Greek philosophy and legislation from Greek cities. By the time of the Roman Empire, Roman law had spread throughout the empire, and the practical differences between jus civile and jus gentium ceased to exist. The emperor Justinian I later codified Roman law in the Corpus Juris Civilis. While the Roman Empire fell, Roman law continued to be in force in parts of Europe, influencing the development of legal systems.
Today, Roman law is no longer directly applied in legal practice, but its influence remains. Many countries' legal systems are based on the old jus commune, a legal system that mixed Roman law with elements of canon law and Germanic custom. Knowledge of Roman law is considered essential for understanding modern legal systems, and it is often a mandatory subject for law students in civil law jurisdictions.
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Common law countries include the US and UK; civil law countries include Germany and France
Civil law and common law are two distinct legal systems with different approaches to the development and application of law. Civil law, also known as Romano-Germanic law, is 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) serving as notable examples. Civil law systems rely on legal codes created by legislators as the primary source of law.
Common law, on the other hand, is a body of unwritten laws based on legal precedents established by courts. It originated in medieval England and is characterized by case law, where judicial decisions in previous cases are recognized as legally binding precedents. Common law systems heavily emphasize judicial precedent and institutionalized opinions, allowing judges to use their discretion in interpreting and applying the law.
Common law countries include the United States and the United Kingdom. Despite sharing a common law heritage, the legal systems in the US and UK have diverged significantly over time, leading to notable differences in areas such as public law and libel law. For example, the US has a written constitution and allows for greater judicial review, while the UK does not have a written constitution and restricts judicial review. Additionally, the US provides more robust protection for freedom of speech and the press, while the UK has more plaintiff-friendly defamation laws.
In contrast, civil law countries include Germany and France. Germany's civil law system is influenced by Roman law, which was adopted from the 15th century onwards, resulting in a legal process that focuses on the application of generally formulated rules to individual cases. German judges are traditionally university-trained experts under the authority of the state, and the German Civil Code emphasizes ethical imperatives such as good faith and fair dealing.
France, another civil law country, also has a rich history of civil law development. The French Civil Code, known as the Napoleonic Code, was established in 1804 and served as a model for many other countries. The French code is known for its lively mood and focus on teaching broad principles, contrasting with the more neutral and concise German code.
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Frequently asked questions
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. Common law systems have extensive freedom of contract, as few provisions are implied, and everything that is not expressly prohibited is permitted.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is based on Roman law and is used in many countries that were formerly French, Dutch, German, Spanish, or Portuguese colonies, including much of Central and South America and Central and Eastern Europe. Civil law systems are generally more prescriptive, with many provisions implied into contracts and less freedom of contract.
In common law systems, judges can make laws in certain areas based on prior court decisions, which are considered legally binding precedent. In civil law systems, legislators pass detailed laws, and courts are required to follow the legal code. Civil law codes are comprehensive, meaning that anything not in the code is not law, while common law systems do not have comprehensive codes and many laws develop from judicial decisions.
