Kara Sears
Common law and civilian codified law (also known as civil law) are the two primary legal systems used throughout the world. Common law is a body of unwritten laws based on legal precedents established by the courts, whereas civil law is a comprehensive, codified set of legal statutes created by legislators. Common law systems rely on caselaw and legal precedent to guide their decisions, while civil law systems rely primarily on codes and statutes. Civil law is the most common legal system in the world, practiced in about 150 countries, while common law is practiced in countries including the US, Canada, India, and Australia.
| Characteristics | Values |
|---|---|
| Basis | Common law is based on court decisions and unwritten laws. |
| Civil law is based on codes and statutes. | |
| History | Common law originated in medieval England. |
| Civil law originated in the Roman Empire and was comprehensively codified in the 19th century. | |
| Precedent | Common law relies on stare decisis, which means that past court decisions are considered legally binding precedent. |
| Civil law systems do not consider past court decisions as binding in future cases, even if the facts are similar. | |
| Flexibility | Common law is less prescriptive than civil law, allowing for more flexibility in interpreting the law. |
| Codification | Common law countries are increasingly adopting codes in certain areas, such as bankruptcy and intellectual property. |
| Civil law is a codified system with a comprehensive set of legal statutes that clearly define the procedures and punishments for offenses. |
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What You'll Learn
- Common law is a body of unwritten laws based on legal precedents
- Civil law is a comprehensive set of codified legal statutes
- Common law relies on stare decisis, or the principle that past decisions are legally binding
- Civil law is derived from Roman law, with a focus on codes and statutes
- Common law countries are adopting codes in areas like bankruptcy and tax law
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 is a less prescriptive system than civil law, and it does not rely on a specific set of codes or statutes. Instead, common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is an evolving system of law, with new legislation being enacted over time, inspired by common law.
The common law system as we know it today originated in England during the Middle Ages and was spread to North America, Australia, Canada, India, New Zealand, and Hong Kong during the colonial period. Common law is based on the principle of stare decisis, which means "to stand by things decided". In practice, this means that judges in common law systems must follow previous rulings and decisions when dealing with similar cases. The decisions of the highest court can generally only be overturned by that same court or through legislation.
In contrast, civil law, which is practiced in about 150 countries, 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 the enactment of codes such as France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law systems have a clear set of rules and codes that outline the procedures for handling claims and the punishments for offenses.
While civil law is meant to create order and reduce bias, common law systems can be influenced by past decisions that may be outdated or biased, which can shape future rulings until societal changes prompt a judicial body to overturn the precedent. This dynamic can make it challenging for marginalized groups to obtain favourable rulings until popular thought or civil legislation changes the interpretation of common law.
Common law countries are increasingly adopting codes similar to those in civil law systems in specific areas, such as bankruptcy, intellectual property, and tax law. For example, the Uniform Commercial Code (UCC) in the United States is a codified framework governing various aspects of commercial law that has been enacted in all 50 states.
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Civil law is a comprehensive set of codified legal statutes
Civil law is a system that relies on codes and statutes, with the primary source of law being the law code. This code is a systematic collection of interrelated articles, arranged by subject matter in a pre-specified order. These codes outline the procedures for handling claims and the punishments for offences. Civil law systems have clear rules for how judges need to rule for specific disputes.
The purpose of codification in civil law is to provide all citizens with a written collection of the laws that apply to them and which judges must follow. Civil law is regularly updated, with the goal of standardised codes being to create order and reduce bias in the system. This is achieved by ensuring that laws are applied consistently from case to case.
In contrast, common law systems rely on case law and legal precedent to guide their decisions. Common law is a body of unwritten laws based on legal precedents established by the courts. While civil law has clear rules outlined in codes, common law systems are less prescriptive, with fewer provisions implied into a contract.
Common law countries are increasingly adopting codes similar to those in civil law systems in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law.
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Common law relies on stare decisis, or the principle that past decisions are legally binding
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law relies on stare decisis, a Latin phrase that roughly translates to "to stand by things decided". Stare decisis is the principle that past decisions are legally binding and form the basis of evaluation for future cases. This means that judges need to follow earlier decisions and rulings when dealing with similar cases.
The common law system as we know it started in England during the Middle Ages and was spread to North America during the 17th and 18th centuries. Today, several countries continue to rely heavily on common law, including the US, Canada, India, Australia, and New Zealand.
In contrast, civil law, which is practiced in about 150 countries, is a comprehensive, codified set of legal statutes created by legislators. It originated in mainland Europe and is rooted in the Roman Empire, with the codification typical of modern civilian systems first appearing in the Justinian Code. Civil law systems rely primarily on codes and statutes, with a civil code that clearly outlines procedures and punishments. While civil law is regularly updated, the goal is to create order and reduce bias in the application of laws.
Some common law countries, such as the US, have adopted codes similar to civil law systems in certain areas, such as bankruptcy, intellectual property, and tax law. Additionally, some states within the US, such as California, have codified their laws in a manner similar to civil law jurisdictions.
While common law relies on stare decisis, or the principle of following past decisions, it is important to note that past decisions can be overturned by a higher court or through legislation. This can occur when societal changes prompt a judicial body to overturn a precedent that is outdated or biased. For example, in England, a common law precedent that favoured fathers over mothers in child custody cases was overturned in the 1970s.
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Civil law is derived from Roman law, with a focus on codes and statutes
Civil law, also known as the civil law system, is a comprehensive set of legal statutes created by legislators. It is the most common legal system in the world, practiced in about 150 countries. Civil law is derived from Roman law, which was the legal system of ancient Rome, and has been influential in the development of law in most of Western civilization as well as in parts of the East. Roman law was in use in the Eastern, or Byzantine, Empire until 1453 and was the basis for the law codes of most countries in continental Europe.
Civil law is characterized by its reliance on legal codes that function as the primary source of law. These codes are systematically collected interrelated articles, arranged by subject matter in a pre-specified order. They 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 that judges must follow.
Civil law is regularly updated and the goal of standardized codes is to create order and reduce bias in the system. In contrast, common law is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. While civil law is derived from Roman law, common law evolved from a British tradition that spread to North America during the 17th and 18th centuries. Common law systems include the US, Canada, India, Australia, Hong Kong, New Zealand, and the UK.
Civil law and common law systems differ in their approach to judicial decisions. In civil law systems, court decisions are not binding in other cases, even if the facts are similar. In common law systems, however, prior court decisions are recognized as legally binding precedents, and judges need to follow these earlier rulings when dealing with similar cases.
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Common law countries are adopting codes in areas like bankruptcy and tax law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Countries that follow a common law system are typically former British colonies or protectorates, including the United States, Canada, India, Australia, and Hong Kong.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. Civil law systems rely primarily on codes and statutes, with a clear set of rules for judges to follow for various disputes. Civil law originated in mainland Europe and is followed by countries that were former French, Dutch, German, Spanish, or Portuguese colonies, including much of Central and South America, Central and Eastern Europe, and East Asia.
While civil law has a clear set of written codes, common law systems are centered around the principle of stare decisis, which means that judges need to follow previous rulings when dealing with similar cases. However, this has led to criticism of common law systems for their slow response to social change, as past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This has made it difficult for marginalized groups to pursue favorable rulings until popular thought or civil legislation changes the interpretation of common law.
Despite the differences between common law and civil law systems, there has been a growing interest in constitutionalism and a blending of features from both systems. Many civil law countries have added a separate constitutional court with the power of judicial review, while common law countries are adopting codes in specific areas such as bankruptcy and tax law. For example, in common law jurisdictions like the US and UK, the emphasis is on seeking a reorganization to keep a business as a going concern when it faces financial trouble. In contrast, civil law jurisdictions traditionally focus on liquidation, although countries like France and OHADA nations are now permitting reorganizations of debtors before they become insolvent. Additionally, France is in the process of introducing a trust law, a concept that exists in common law systems but not in civil law. These adoptions of codes and concepts from common law demonstrate the evolution of legal systems and their efforts to address the strengths and weaknesses of each tradition.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a less prescriptive system that draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law originated in medieval England and is practiced today in countries including the US, Canada, England, India, and Australia.
Civilian codified law, or civil law, 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 the world's most common legal system, practiced in about 150 countries.
The main difference is that common law relies on past legal precedents and judicial rulings to decide cases, whereas civilian codified law relies on codified statutes and ordinances. Common law is also less prescriptive than civil law, which provides a written collection of laws that apply to citizens and judges must follow.
Common law is practiced in countries that were former British colonies or protectorates, including the US, Canada, Australia, India, New Zealand, and the United Kingdom.
Many countries follow the civil law system, including all of South America except Guyana, almost all of Europe (including Germany, France, and Spain), China, and Japan.
