Kara Sears
Common law and civil law are the two primary legal systems used worldwide. Common law, also known as case law, is unwritten and based on legal precedents established by the courts. It originated in medieval England and is practised in the United States, the United Kingdom, and other former British colonies. On the other hand, civil law is primarily based on Roman law and practised in much of Europe and its former colonies. It is a codified system of law, relying on legal codes and statutes rather than judicial precedent. While common law systems heavily emphasise precedent, civil law judges tend to give less weight to previous decisions.
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What You'll Learn
Common law is based on legal precedents and judicial rulings
Common law, also known as case law, is a body of unwritten laws based on legal precedents and judicial rulings. It originated in medieval England and is practised today in the United States (except Louisiana) and the United Kingdom, as well as other English-speaking countries. Common law recognises prior court decisions as legally binding precedent, and judges can make laws in certain areas. This means that when a judge presides over a case, they determine which precedents apply to that particular case. The decisions of higher courts are binding on cases tried in lower courts, although lower courts can deviate from these precedents if the current case is substantially different or the precedents are outdated.
Common law is contrasted with civil law, which takes the form of legal codes and does not give as much weight to precedent. Civil law is primarily based on Roman law and the Napoleonic Code, and is practised in much of Europe and the rest of the world. In civil law jurisdictions, the precedent of courts is not binding, and courts lack the authority to act without a statute.
The common law system makes it difficult for marginalised parties to pursue favourable rulings until popular thought or civil legislation changes the interpretation of common law. For example, in England, common law held that fathers were entitled to custody of the children in cases of divorce, which kept women trapped in marriages. However, common law can also be used as the basis for new legislation, such as in the case of prosecuting "upskirting".
Another difference between the two systems is the appointment of judges. Under common law, judges are usually appointed after successful legal careers, while civil law jurisdictions tend to appoint graduates straight out of university. This can affect a judge's worldview and, therefore, their rulings.
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Civil law is based on codified statutes and ordinances
Civil law, also known as statutory law, is a comprehensive, codified set of legal statutes created by legislators. It is primarily contrasted with common law, which is based on uncodified case law that arises as a result of judicial decisions. Common law recognises prior court decisions as legally binding precedent, whereas civil law does not.
Civil law codes are constantly changing because the precedent of courts is not binding and courts lack the authority to act without a statute. In some civil law jurisdictions, the judiciary does not have the authority to invalidate legislative provisions. For example, in former Soviet countries like Armenia, the judiciary can only apply the code as written, even if it introduces problems that cannot be adjudicated under common law principles.
Civil law is the legal system of choice in many European countries, as well as in Central and South America, Central and Eastern European countries, East Asian countries, and some African countries. It is characterised by its origins in Roman law and the comprehensive codification of received Roman law, including it in civil codes. This is in contrast to common law, which originated in medieval England and is the basis of the legal traditions of English-speaking countries.
While common law systems place great weight on precedent, civil law judges tend to give less weight to judicial precedent. This is because civil law is based on the idea that the law should be coherently and comprehensively stated in legislation, sometimes introducing major reforms or starting anew. In this regard, civil law codes are similar to the Restatements of the Law and the Model Penal Code in the United States.
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Common law is unwritten, civil law is written
Common law and civil law are two of the most widely used legal systems in the world. They differ in several ways, one of which is their relationship to written law. Common law is often described as unwritten, while civil law is considered written.
Common law, also known as case law, is a body of law that is based on judicial decisions and legal precedents rather than a formal code. It originated in medieval England and is practised in many English-speaking countries, including the United States (except Louisiana) and the United Kingdom. Common law is unwritten in the sense that it is not codified in a central, comprehensive collection of laws or statutes. Instead, it relies on detailed records of past cases and precedents to inform future decisions. This means that judges in common law systems play a significant role in shaping the law by interpreting and applying precedents to new situations. In some cases, judges may even create new law in certain areas where no relevant precedents exist.
In contrast, civil law is primarily associated with the legal traditions of continental Europe and countries influenced by the civil law of France, Germany, and Spain, such as Japan and former French, Spanish, German, Dutch, and Portuguese colonies. It is a codified system of law, meaning it is written in the form of comprehensive civil codes or legal statutes created by legislators. These codes are meant to provide a coherent and comprehensive framework for the law, covering both substantive and procedural rules. While civil law also recognises precedents, they are not considered binding, and civil law judges tend to place less weight on them compared to their common law counterparts.
The distinction between written and unwritten law is not absolute, and both systems exhibit some degree of flexibility and adaptability. Common law, despite being considered unwritten, can lead to the creation of new legislation as interpretations of precedents evolve. For example, the common-law offence of "outraging public decency" in the UK has been used to prosecute a modern form of intrusion called "upskirting". On the other hand, civil law codes are constantly changed and updated, reflecting the dynamic nature of legislation.
In summary, the difference between common law and civil law regarding written and unwritten law lies in their approaches to codification and precedent. Common law is unwritten in the sense that it relies on judicial decisions and precedents rather than a central code, allowing for greater judicial interpretation and flexibility. Civil law, on the other hand, is written in the form of comprehensive codes and statutes, providing a more structured and coherent framework for the law.
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Common law countries include the US, UK, Canada, India and Australia
Common law and civil law are two of the most widespread legal systems in the world. Civil law, also known as Roman law, is the most widespread by landmass and population. Common law, on the other hand, is employed by the greatest number of people compared to any single civil law system. Common law countries include the US, UK, Canada, India and Australia.
Common law, also referred to as case law, is a legal system that originated in medieval England. It is based on uncodified case law that arises as a result of judicial decisions, recognising prior court decisions as legally binding precedent. In common law countries, statutes exist at all levels of the court systems, but the judge is at the centre of the justice system. Common law countries will have lots of similarities in their legal systems.
The US, UK, Canada, India and Australia are all former British colonies, which is why they follow the common law system. However, the US has one exception: Louisiana. Louisiana is the only US state whose private civil law is based heavily on French and Spanish codes, rather than English common law. In Louisiana, private law was codified into the Louisiana Civil Code.
Canada also has a single region that uses a civil law system: Quebec. In common law countries like the US and UK, judges can make laws in certain areas, whereas civil law judges tend to give less weight to judicial precedent. Civil law is derived from legal statutes and codes created by legislatures, and it clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishments for an offence.
Civil law countries include those in continental Europe, Latin America, Africa, and the Middle East. In civil law jurisdictions, the judiciary may not have the authority to invalidate legislative provisions. Civil law is often paired with the inquisitorial system, but the terms are not synonymous.
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Civil law countries include most of Europe, China and Japan
Civil law and common law are two of the four major legal traditions that form the basis of contemporary national legal systems. Civil law, also known as Roman law, is the most widespread by landmass and population. It is derived from the Corpus Juris Civilis of the Roman Empire, but has been overlain by Napoleonic, Germanic, canonical, feudal, and local practices, as well as doctrinal strains such as natural law, codification, and legal positivism. Civil law is based on the concept of a comprehensive written set of laws covering various areas of law, such as tax law, criminal law, and commercial/business law. Civil law codes must be constantly changed as the precedent of courts is non-binding and courts lack the authority to act without a statute. Civil law countries include most of Europe, China, and Japan.
European civil law is largely influenced by the Napoleonic Code, which gives public prosecutors a much larger role in the criminal process than in common law countries like the US and England. In civil law countries, public prosecutors often have direct supervisory powers over the police and oversee almost all criminal arrests. Some civil law countries, like Japan, also allow officials to move between the roles of prosecutor and judge.
The civil law tradition includes groups of countries with common languages based on a shared colonial past, such as former French, Belgian, Spanish, and Portuguese colonies. It also includes countries that were not part of these colonial empires, such as China, Japan, and Russia.
The civil law system in Japan is based on the country's constitution and a main body of statutory law known as the Six Codes. Japan's judicial system is administered by an office of the Supreme Court and consists of regional trial courts, district courts, and a regional appellate court. Japan's legal system was historically influenced by European legal systems, especially the civil law of Germany and France, during the Meiji Era.
China's legal system was influenced by the German Civil Code, which was introduced in the later years of the Qing dynasty. The German Civil Code also formed the basis of the law of the Republic of China, which remains in force in Taiwan.
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Frequently asked questions
Common law and civil law are two different legal systems used around the world. Common law is a system based on judicial precedent, where judges follow previous court decisions as a source of law. Civil law, on the other hand, is based on legal codes or statutes created by legislators.
Common law originated in medieval England and is used in countries that were formerly under English rule, including the United States. Civil law, also known as continental European law, has its roots in Roman law and is prevalent in former French, Dutch, German, Spanish, and Portuguese colonies, as well as Central and Eastern European and East Asian countries.
In a common law system, contracts tend to be longer as they must include all the terms governing the relationship between the parties. Civil law systems, on the other hand, imply many provisions into a contract, so the contract itself may be shorter.
In common law jurisdictions, judges are typically appointed after successful legal careers, while civil law systems tend to appoint recent law graduates to the bench.
The difference between common law and civil law may not significantly affect most people's daily lives. However, it is important to note that certain legal concepts and processes may vary depending on the legal system in place.
