Cecily Zamora
Civil law and common law are two distinct legal systems with different historical origins and approaches to the law. Civil law, also known as continental or Romano-Germanic law, is primarily inspired by classical Roman law and Justinian law, which provided a model for contracts, procedural rules, family law, and constitutional principles. It is a codified system, featuring concise and broadly applicable legal codes that outline general principles and rights. Common law, on the other hand, originated in medieval England and is based on uncodified case law and judicial precedent. While civil law countries tend to have written constitutions and more prescriptive codes, common law systems provide greater flexibility and rely on binding judicial decisions and precedent. Common law also emphasizes extensive freedom of contract, with fewer implied provisions. Understanding the differences between these legal systems is crucial for lawyers and legal practitioners, especially when navigating international laws and jurisdictions.
| Characteristics | Values |
|---|---|
| Origin | Civil law is derived from the Corpus Juris Civilis, with influences from Napoleonic, Germanic, canonical, feudal, and local practices. Common law, on the other hand, originated in medieval England. |
| Basis | Civil law is primarily based on Roman law, also known as neo-Roman law, Romano-Germanic law, or Continental law. Common law is based on case law and judicial decisions, creating legally binding precedents. |
| Nature of Codes | Civil law codes are concise, broadly applicable, and avoid factually specific scenarios. Common law codes, in contrast, tend to be lengthy and highly detailed. |
| Role of Precedent | Civil law judges give less weight to judicial precedent, while common law systems heavily emphasize it. |
| Nature of Decisions | Civil law decisions are short and concise, whereas common law decisions are often verbose and supported by legal reasoning. |
| Influence | Civil law is practiced in approximately 150 countries, covering about 60% of the world. Common law is prevalent in former British colonies and the United States. |
| Contractual Provisions | Common law emphasizes the importance of setting out all terms in a contract, while civil law implies provisions and provides more flexibility. |
| Flexibility | Common law offers greater flexibility in granting security over assets and has the concept of trusts. Civil law does not have the concept of trusts and requires security interests to be re-registered with new lenders. |
| Focus | Civil law promotes cooperation, order, and predictability, with a focus on individual freedom. Common law provides extensive freedom of contract, allowing everything unless expressly prohibited. |
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What You'll Learn
- Criminal law deals with behaviour that is an offence against the state or federal government
- Civil law deals with behaviour that constitutes harm, loss, or injury to an individual or private party
- Criminal law cases are initiated by the government, while civil law cases are initiated by a private party
- Civil law is primarily contrasted with English common law, which places great weight on precedent
- Civil law systems are found on all continents and cover about 60% of the world
Criminal law deals with behaviour that is an offence against the state or federal government
Criminal law and civil law are two distinct bodies of law that serve different purposes and function in different ways. Criminal law deals with behaviour that is an offence against the state or federal government, often referred to as "crimes against society as a whole". This can include a wide range of actions, from physically assaulting a government official to any other criminal law established by the government.
Criminal cases are initiated and prosecuted by the state or federal government, with the prosecutor representing the state. These cases are almost always decided by a jury, and the burden of proof lies with the prosecution, which must establish the guilt of the defendant "beyond a reasonable doubt". The consequences of criminal cases are severe, with serious charges often resulting in imprisonment or fines paid to the government. Due to the gravity of the potential penalties, criminal defendants have constitutional rights, such as the right to a trial by jury, the right to an attorney, and protection against illegal searches and seizures.
Civil law, on the other hand, is a broad term encompassing all non-criminal law. It typically involves disputes between private individuals or organisations, concerning violations of individual rights or interests, contractual interests, or property-related matters. Civil cases are initiated by a private party, the plaintiff, who seeks redress from the defendant, often in the form of monetary compensation. The burden of proof in civil cases is lower than in criminal cases, requiring only a preponderance of evidence to establish liability. Civil cases rarely involve incarceration as a punishment, focusing instead on financial penalties or orders to change behaviour.
It is important to note that a single act can sometimes result in both criminal and civil charges, as seen in the O.J. Simpson case, where he was acquitted of murder in a criminal trial but found liable in a subsequent civil suit for wrongful death.
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Civil law deals with behaviour that constitutes harm, loss, or injury to an individual or private party
Civil law, also called continental or Romano-Germanic law, is derived from classical Roman law, particularly Justinian law, which provided a model for contracts, rules of procedure, family law, wills, and constitutional law. Civil law systems are in force in about 150 countries and are the most widespread legal systems globally. Civil law is primarily contrasted with common law, which originated in medieval England and is followed in countries that were former British colonies or protectorates, such as the United States.
Civil law systems are based on codes that explain the principles of law, rights, and entitlements. These codes are systematically collected and arranged by subject matter, providing a written collection of laws that judges must follow. Civil law codes are concise and broadly applicable, avoiding factually specific scenarios. They set out general principles and rules of law, distinguishing substantive rules from procedural rules. While civil law tends to hold case law as secondary to statutory law, common law systems rely heavily on judicial decisions and consider prior court decisions as legally binding precedents.
The civil law tradition promotes cooperation between individuals and focuses on protecting individual freedom. It provides a clear expression of rights and duties, with remedies that are self-evident. Civil law is adaptable, allowing for adjustments to rules based on social change and new needs through interpretation and creative jurisprudence. This adaptability is facilitated by the general clauses in civil codes, which permit their application to changing circumstances.
Civil law countries typically have a written constitution based on specific codes that enshrine basic rights and duties. For example, civil codes may cover areas such as corporate law, administrative law, tax law, and constitutional law. Administrative law, however, is often less codified and left to the discretion of administrative courts. Civil law systems generally have less freedom of contract, as many provisions are implied by law, and parties cannot contract out of certain provisions.
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Criminal law cases are initiated by the government, while civil law cases are initiated by a private party
Criminal law and civil law differ in several ways, including how cases are initiated, how they are decided, the types of punishment or penalty imposed, and the standards of proof required.
Criminal law cases are initiated by the government, specifically the federal or state government, which acts as the prosecution. The prosecutor, typically the district attorney or city attorney, files the case in court as a representative of the state. An individual can never file criminal charges against another person, although they may report a crime. This is because criminal law deals with offences against the state, or society as a whole, even if an individual is directly harmed.
Civil law, on the other hand, involves disputes between private parties, or between a private party and an organisation. These disputes may be related to monetary or property issues, contractual interests, or personal injury. Civil cases are initiated by a private party (the plaintiff), who files a suit against the defendant. The plaintiff asks the court to order the defendant to remedy a wrong, often through monetary compensation.
It is important to note that a single wrongful act may constitute both a public offence and a private injury, leading to both criminal and civil charges. For example, in 1995, O.J. Simpson was acquitted of murdering his wife and her friend in a criminal trial, but was later found liable for their killings in a civil suit for wrongful death.
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Civil law is primarily contrasted with English common law, which places great weight on precedent
Civil law, also known as continental or Romano-Germanic law, 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). The German Civil Code has been highly influential, inspiring the civil codes in countries such as Japan, South Korea, Switzerland, and China.
The civil law tradition promotes cooperation between human beings and places a focus on individual freedom. It is adaptable, with civil codes containing general clauses that can be adjusted to social change and new needs through interpretation and creative jurisprudence. Civil law is found on all continents and is practiced in about 150 countries, covering around 60% of the world. In Continental Europe, most jurisdictions have civil codes, while in Great Britain, Scotland has retained an uncodified form of civil law. In North America, civil codes are found in Louisiana and Quebec, and in Asia, countries such as Japan, South Korea, Indonesia, and Lebanon have civil codes.
English common law, on the other hand, has influenced the legal traditions of English-speaking countries. It is characterised by its reliance on precedent and uncodified case law. Common law systems recognise prior court decisions as legally binding, with judges following the principle of stare decisis, or 'standing by things decided'. This means that once a court has established a principle, that principle will be applied in future cases with similar facts. This gives common law its consistency and predictability.
In summary, the key difference between civil law and English common law lies in their approach to precedent and the source of law. Civil law tends to give less weight to judicial precedent and relies primarily on written legal codes, while common law places great importance on precedent and uncodified case law.
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Civil law systems are found on all continents and cover about 60% of the world
Civil law, also known as Romano-Germanic legal systems, is found on all continents and is practised in about 150 countries, covering approximately 60% of the world. It is a legal system rooted in the Roman Empire, with Napoleonic and Germanic influences. Civil law systems are primarily characterised by their reliance on legal codes as the primary source of law, in contrast to common law systems which place greater emphasis on judicial precedent.
Civil law codes are systematically organised collections of interrelated articles, covering principles of law, rights, and entitlements, as well as the functioning of basic legal mechanisms. These codes are enacted by legislatures and are designed to be accessible to citizens and judges, providing clarity on the rules and principles that govern their conduct. While civil law is the predominant system, some countries, such as Scandinavian nations, operate with civil codes but are not considered civil law jurisdictions.
The German Civil Code has been highly influential globally, inspiring the civil codes of countries like Japan, South Korea, and Switzerland, and Taiwan. In Asia, several countries have adopted civil law and possess civil codes, including Indonesia, Kyrgyzstan, and Lebanon. In Africa, the civil law tradition has left its mark, particularly through the influence of the Egyptian Civil Code and the Roman-Dutch law in South Africa.
In the Americas, civil codes are prevalent in Central and South America, with almost all countries in these regions adopting them. In North America, civil codes are found in Louisiana and Quebec. Additionally, in mixed jurisdictions, civil law coexists with other legal traditions, such as common law, customary law, or Islamic law.
Overall, the reach of civil law systems extends across the globe, shaping the legal frameworks of numerous countries and impacting the lives of a significant portion of the world's population.
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Frequently asked questions
Civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. It is the most common legal system in the world, practiced in about 150 countries.
Common law is a legal system that originated in medieval England and is based on judicial precedent. It is often contrasted with civil law, which takes the form of legal codes. Common law systems place great weight on precedent, while civil law judges tend to give less weight to judicial precedent.
In a common law system, it is important to set out all the terms governing the relationship between the parties to a contract in the contract itself. In a civil law system, there are a number of provisions implied into a contract, and less importance is placed on setting out all the terms in the contract. This often results in contracts in civil law systems being shorter.
In civil litigation, the plaintiff asks the court to order the defendant to remedy a wrong, often in the form of monetary compensation. In criminal law, the case is filed by the government against a defendant. An individual can never file criminal charges against another person.
In criminal law, punishment for serious charges often consists of imprisonment but may also include a fine. In civil law, punishment almost always consists of a monetary award and never consists of imprisonment.
