Kara Sears
The opposite of common law is civil law. Common law is a legal system that originated in medieval England and is used in countries that were former British colonies or protectorates, including the United States, Canada, India, and Australia. It relies heavily on judicial precedent, where past legal precedents and rulings are used to decide cases. Judicial decisions are binding and generally cannot be overturned except by a higher court or through legislation. Common law systems also feature extensive freedom of contract, with few provisions implied by law. In contrast, civil law is a codified system of law that is rooted in the Roman Empire and was later comprehensively codified and disseminated in the 19th century, notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is characterized by its reliance on legal codes as the primary source of law, rather than judicial precedent. It is generally more prescriptive than common law, with many provisions implied into contracts by law. Civil law countries include those that were former French, Dutch, German, Spanish, or Portuguese colonies, such as much of Central and South America, Central and Eastern European countries, and East Asian countries like China and Japan.
| Characteristics | Values |
|---|---|
| History | Civil law is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century. Common law originated in medieval England. |
| Sources of law | Civil law relies on legal codes as the primary source of law. Common law relies heavily on judicial precedent and uncodified case law. |
| Precedent | Civil law judges give less weight to judicial precedent, while common law systems place great weight on precedent. |
| Contracts | Civil law has a more sophisticated model for contracts, with many provisions implied into a contract by law. Common law has extensive freedom of contract, with few provisions implied into a contract. |
| Binding decisions | In civil law, the precedent of courts is not binding, and courts lack authority in the absence of a statute. In common law, judicial decisions are binding and can only be overturned by the same court or through legislation. |
| Infrastructure projects | Civil law jurisdictions have well-defined legal concepts for certain infrastructure projects, such as concessions and affermage, which may not be understood in common law countries. |
| Court systems | Civil law countries typically have separate constitutional, administrative, and civil court systems. |
| Country adoption | Civil law countries include former French, Dutch, German, Spanish, or Portuguese colonies, much of Central and South America, most of Central and Eastern European and East Asian countries, and some former British colonies like India. Common law countries include former British colonies or protectorates, such as the United States, Canada, England, Australia, and some states in the United States, like Louisiana, have a mix of both systems. |
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What You'll Learn
- Civil law systems are more prescriptive and rely on legal codes as the primary source of law
- Common law countries may not follow a constitution or a code of laws
- Civil law countries have a more sophisticated model for contracts with provisions based in the law
- Common law originated in medieval England, while civil law is rooted in the Roman Empire
- Common law countries include the US, Canada, England, India, and Australia
Civil law systems are more prescriptive and rely on legal codes as the primary source of law
Civil law systems are more prescriptive than common law systems and rely on legal codes as the primary source of law. Civil law, rooted in the Roman Empire, was comprehensively codified and disseminated in the 19th century, notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law countries, which include former French, Dutch, German, Spanish, and Portuguese colonies, as well as much of Central and South America, East Asia, and most of Central and Eastern Europe, tend to have more detailed laws passed by legislatures and rely less on judicial precedent.
In civil law systems, codes and statutes are designed to cover all eventualities, and judges have a more limited role of applying the law to specific cases. Past judgments are considered loose guides, and civil law judges give less weight to judicial precedent. Civil law codes must be constantly updated because the precedent of courts is not binding, and courts lack the authority to act without a statute. For example, in some civil law jurisdictions, the judiciary may not have the power to invalidate legislative provisions and must apply the code as written.
In contrast, common law systems, which are prevalent in former British colonies like the United States, Canada, England, India, and Australia, heavily rely on judicial precedent and case law. Judicial decisions are generally binding and are considered a crucial source of law. While contracts in civil law systems may have many implied provisions, common law systems offer extensive freedom of contract, with few implied provisions. This often results in longer contracts in civil law countries as all terms must be explicitly outlined.
The primary distinction between civil and common law systems lies in the source of law. Civil law systems are code-based, with codified statutes and ordinances ruling the land. Common law systems, on the other hand, are more case-based, using past legal precedents and judicial rulings to decide cases. In these systems, everything is permitted unless expressly prohibited by law, and judges can proactively contribute to rule-making.
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Common law countries may not follow a constitution or a code of laws
Common law systems, which are typically found in former British colonies or protectorates, including the United States, Canada, England, India, and Australia, differ from civil law systems in several key ways.
One notable difference is that common law countries may not follow a constitution or a code of laws in the same way that civil law countries do. Civil law, which is rooted in the Roman Empire and was later codified and disseminated in the 19th century, particularly with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch, relies heavily on legal codes as the primary source of law. These codes are designed to cover all eventualities, and judges in civil law systems have a more limited role of applying the law to specific cases. In contrast, common law systems do not have a comprehensive set of codified laws, and instead, rely on judicial precedent and case law as their primary sources of law. Judicial decisions in common law countries are generally binding and are considered legally binding precedent, although they can be appealed to higher courts.
The absence of a formal constitution or code of laws in common law countries does not mean that they lack a framework for governance. Common law countries often have extensive freedom of contract, with few provisions implied by law. This means that the terms governing the relationship between parties to a contract are set out in the contract itself, rather than being prescribed by statutory law. However, this also means that certain protections may need to be enshrined in specific legislation, such as protections for citizens in infrastructure programs or other areas.
Another key difference between common law and civil law systems is the role of judges in interpreting and applying the law. In common law countries, judges can proactively contribute to rule-making and law creation, particularly in areas where there is no clear statutory guidance. They play the role of arbiters between parties presenting arguments, and their decisions are based on precedents set by higher courts. In civil law countries, judges have a more limited role, acting more as investigators and applying the law to the case at hand. While past judgments can provide guidance, they are not considered binding precedent in the same way as in common law systems.
It is worth noting that some countries, such as the United States, have a mix of common law and civil law influences. For example, the state of Louisiana in the United States uses a bijuridical system, incorporating both common law and civil law elements, due to its historical ties to France. Additionally, the interpretation and application of the law can vary within a country, with different approaches taken by liberal and conservative judges, for example, in the US Supreme Court.
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Civil law countries have a more sophisticated model for contracts with provisions based in the law
Civil law is a legal system rooted in the Roman Empire, with its modern form being 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 most common legal system globally, practised in about 150 countries. It is typically followed in countries that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, most of Central and Eastern Europe, and East Asia.
Civil law is often contrasted with common law, which originated in medieval England and is followed in countries that were formerly British colonies or protectorates, including the United States, Canada, England, India, and Australia. While common law systems rely heavily on judicial precedent, civil law systems are characterised by their reliance on legal codes as the primary source of law. Civil law codes are designed to cover all eventualities, and judges have a more limited role of applying the law to the case at hand. Past judgments are considered loose guides, and civil law judges tend to give less weight to judicial precedent.
In the context of contracts, civil law countries have a more sophisticated model with provisions based in the law. In common law, there is extensive freedom of contract, and few provisions are implied into the contract by law. Contracts in common law systems are often longer because all the terms governing the relationship between the parties must be set out in the contract itself. In contrast, civil law systems imply many provisions into a contract by law, and parties cannot contract out of certain provisions. This results in shorter contracts in civil law countries.
Additionally, in civil law jurisdictions, certain forms of infrastructure projects, such as concessions and affermage, have definite technical meanings and structures that may not be understood or applied in common law countries. In civil law, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
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Common law originated in medieval England, while civil law is rooted in the Roman Empire
Common law and civil law are two distinct legal systems with different historical origins and characteristics. Common law, also known as case law, originated in medieval England and is characterised by its reliance on judicial precedent and unwritten laws. It is a flexible system that allows for adaptation to new situations not contemplated by the legislature. Decisions made by higher courts are considered legally binding and can shape future rulings.
On the other hand, civil law, rooted in the Roman Empire, was comprehensively codified and disseminated in the 19th century, influenced by the Napoleonic Code and Germanic legal traditions. Civil law systems place less emphasis on judicial precedent and instead rely on legal codes as the primary source of law. This system is more prescriptive and consistent across jurisdictions, providing a clear framework for legal interpretation.
The development of common law in England can be traced back to a period when judicial decisions and precedents played a significant role in shaping the law. Over time, these decisions accumulated, creating a body of unwritten laws that influenced future cases. This system allowed for flexibility and adaptation to changing societal needs, as judges could interpret and apply the law based on past decisions.
In contrast, civil law has a more standardised approach. The codification of civil law began with the Corpus Juris Civilis and was further influenced by Napoleonic, Germanic, canonical, and feudal laws. This resulted in the creation of comprehensive legal codes that provided clear guidelines for legal interpretation. Civil law is commonly practiced in former French, Dutch, German, Spanish, and Portuguese colonies, as well as in Central and South America, Central and Eastern Europe, and East Asia.
The key difference between the two systems lies in their approach to precedent and written laws. Common law values precedent highly, allowing for some freedom of interpretation. In contrast, civil law judges tend to give less weight to precedent, focusing instead on the application of legal codes. This distinction has shaped the legal traditions of English-speaking countries, which primarily follow common law, and civil law countries, which include much of continental Europe and their former colonies.
Today, the US operates under a dual system of both common and civil law. While common law originated in medieval England, it has evolved and remains influential in the US and other parts of the world. Louisiana is a unique example within the US, as it heavily follows French and Spanish civil law rather than English common law.
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Common law countries include the US, Canada, England, India, and Australia
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Common law is often contrasted with civil law, which is the most prevalent legal system in the world by landmass and population. Civil law is a system in which the body of law is primarily derived from legal statutes and codes created by legislatures.
Canada and India have also increasingly exercised the power of judicial review, particularly in the area of individual rights, shifting from the British to the American model. In common-law countries, there is extensive freedom of contract, and generally, everything is permitted that is not expressly prohibited by law. This results in contracts that are often longer than those in civil law countries, as all terms governing the relationship between the parties must be set out in the contract itself.
In contrast to common law, civil law is a system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law is interpreted rather than made by judges, and only legislative enactments are considered legally binding. Civil systems also clearly define the cases that can be brought to court, the procedures for handling claims, and the punishments for an offense. While common law is employed by the greatest number of people compared to any single civil law system, civil law is practiced in about 150 countries.
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Frequently asked questions
The opposite of common law is civil law.
Common law systems rely heavily on judicial precedent, whereas civil law systems are characterised by their reliance on legal codes that function as the primary source of law.
Civil law countries include all of South America except Guyana, almost all of Europe (including Germany, France and Spain), China, and Japan.
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