Anaya Nolan
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law. Common law is more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention. Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court and the procedures for handling claims. While civil law creates order and reduces bias, common law establishes consistent outcomes by applying the same standards of interpretation. Common law is practised in countries like the US, Canada, the UK, and Ghana, which inherited it from its colonial ruler.
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What You'll Learn
Civil law vs common law
Civil law and common law are two different legal systems that form the basis of the legal traditions of many countries worldwide. Civil law is the most common legal system globally, practised in about 150 countries. On the other hand, common law is prevalent in former British colonies or protectorates, including the United States and Ghana.
Sources of Law
The primary difference between civil law and common law is the source of law in each system. Civil law, rooted in the Roman Empire, is characterised by its reliance on comprehensive legal codes as the primary source of law. These codes are typically found in the form of civil or criminal codes that outline wrongdoings and their corresponding punishments. In contrast, common law, which originated in medieval England, is derived from uncodified case law that arises from judicial decisions. Common law recognises prior court decisions as legally binding precedents, with judicial precedent being a defining feature of common law systems.
Judicial Precedent
While common law systems heavily rely on and place great weight on judicial precedent, civil law systems tend to give less significance to precedent. Common law courts are not absolutely bound by precedent and can reinterpret and revise the law to adapt to new trends. In contrast, civil law judges may be expressly forbidden from pronouncing general principles of law, as in the case of the Napoleonic Code.
Contractual Provisions
Another distinction between the two systems lies in their approach to contractual provisions. Common law systems emphasise the importance of setting out all the terms governing the relationship between the parties in a contract, as there are few implied provisions. In contrast, civil law systems are more prescriptive, with several provisions implied into the contract by operation of law. This often results in shorter contracts in civil law jurisdictions compared to common law jurisdictions.
Administrative Law
In civil law countries, a separate body of administrative law may govern specific arrangements, such as Public-Private Partnership (PPP) projects. In these cases, unless the contract specifies arbitration, it will be enforced by the administrative courts. In common law systems, judicial decisions are binding, and decisions of the highest court can generally only be overturned by the same court or through legislation.
In conclusion, civil law and common law systems differ in their sources of law, treatment of judicial precedent, approach to contractual provisions, and the presence of administrative law. Understanding these differences is crucial when navigating the legal landscape of a particular country or jurisdiction.
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Common law and unwritten constitutions
Common law is defined by Black's Law Dictionary as "the body of law derived from judicial decisions, rather than from statutes or constitutions". It is a system of law that relies on precedent and is adaptable to changing socio-economic and political realities.
The idea of an "unwritten constitution" is not a novel concept in common law systems. In fact, it is argued that all common law jurisdictions, whether they have a written constitution or not, inevitably have elements of unwritten constitutionalism. This is because the written constitution cannot foresee and cover all matters exhaustively, and thus, unwritten principles or rights are often derived from concepts such as human dignity and political morality.
In the context of Canada, for example, the unwritten constitutional law is derived from customary sources unique to the country's constitutional history. These unwritten norms are essential to the nation's identity, values, and juridical system. Similarly, the United States federal courts have what is known as "interstitial common law", which includes the judicial interpretation of fundamental laws, such as the US Constitution, legislative statutes, and agency regulations.
The concept of an unwritten constitution is often criticised, particularly in countries with a written constitution. One criticism is that it allows judges to impose unwritten restrictions on legislative authority, thereby making morality statements about the decisions made by elected legislative representatives.
Despite this criticism, the unwritten constitution or unwritten law is an important aspect of the common law system, allowing for flexibility and the adaptation of laws to changing social, economic, and political realities.
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Common law and the sovereignty of the people
Common law is defined by Black's Law Dictionary as "the body of law derived from judicial decisions, rather than from statutes or constitutions". It is a system of law that is based on precedent and evolves over time through a series of gradual steps, adapting to changing political, legal, and social philosophies. Common law is more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention.
The opposite of a common law political constitution could be a written constitution, which explicitly outlines the rules and laws that govern a country. However, it is important to note that even written constitutions may have unwritten norms and principles that are essential to the history, identity, and values of a nation. These unwritten constitutional principles are often referred to as the "invisible constitution".
In the context of common law and the sovereignty of the people, the idea of an unwritten constitution is significant. In common law jurisdictions, the validity of the written Constitution is derived from the common law Constitution, which is based on abstract principles of political morality that support and limit the activities of the Parliament. The judiciary, as the final authority, interprets and demands compliance with these principles.
The concept of "sovereignty of the people" is often associated with democratic ideals, where the power of the government is derived from the people. In common law jurisdictions, the people's sovereignty is expressed through the interpretation and application of the law, which is influenced by the community's political morality, judicial decisions, and historical context.
However, the idea of sovereignty has also been co-opted by the sovereign citizen movement, which is considered an extremist ideology by law enforcement agencies like the FBI. Sovereign citizens claim that they are not subject to any government statutes unless they consent to them and believe that courts have no jurisdiction over them. This movement has led to criminal activities and the imprisonment of hundreds of individuals.
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Common law and natural law
Common law is defined by Black's Law Dictionary as "the body of law derived from judicial decisions, rather than from statutes or constitutions". It is often referred to as "judge-made law" and is based on a multitude of particularised prior decisions, with common law courts having the ability to reinterpret and revise the law without legislative intervention.
The laws of Ghana, for example, are largely based on the English common law tradition inherited from British colonisation. The common law system was retained even after Ghana gained independence and is enshrined in the country's 1992 Constitution.
Natural law, on the other hand, is considered a timeless and universal moral law founded on nature, reason, or the will of God. It is the foundation upon which the spirit of the Constitution is built, with the natural rights of individuals being a core part of it. These natural rights are rights that everyone has, such as the right to liberty, which includes the right to freedom of speech, the right to choose when to go to bed, and the right to purchase property.
While natural law and common law are often viewed as distinct and unrelated concepts in modern times, some argue that they are intertwined. The historical development of American jurisprudence, for instance, is said to have been undergirded by natural law, with the natural law tradition shaping the understanding of the common law rules created by judges.
The idea of an unwritten Constitution, which is a concept related to common law, is not seen as a product of illegitimate judicial activism. Instead, it refers to unwritten norms that are essential to the history, identity, and values of a nation. In common law jurisdictions, even with a written Constitution, unwritten constitutionalism is inevitable due to the difficulty of exhaustively covering all matters.
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Common law in the US
Common law is law derived from judicial decisions instead of statutes. In the US, common law was originally based on English common law, but the American legal system has since matured and can now create common law rules from direct precedent or by analogy with similar areas of decided law.
In the US, common law is found mainly at the state level, with a limited body of federal common law created and applied by federal courts in the absence of any controlling federal statute. For example, in the 2020 Supreme Court opinion Rodriguez v. FDIC, a federal common law rule was struck down because it was not "necessary to protect uniquely federal interests".
At the state level, legislatures often codify common law rules from the courts of their state, either to give the rule the permanence of a statute, to modify it, or to replace it entirely with legislation. An example of this is the 2018 California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, which led to the creation of a new section of the Labor Code.
The US federal courts are divided into twelve regional circuits, each with a circuit court of appeals. Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but only persuasive authority on sister circuits. District court decisions are not binding precedent.
While common law systems rely on case law and legal precedent to guide their decisions, civil law systems rely primarily on codes and statutes. Common law is more malleable than statutory law, as common law courts are not absolutely bound by precedent, and can reinterpret and revise the law without legislative intervention to adapt to new trends.
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Frequently asked questions
The opposite of a common law political constitution, which is a body of unwritten laws based on legal precedents established by the courts, would be a civil law political constitution. Civil law is a comprehensive, codified set of legal statutes created by legislators.
Ghana is an example of a common law jurisdiction. Ghana follows the English common law tradition inherited from British colonisation.
While I cannot find specific sources confirming this, it is likely that countries such as China, France, Germany, and Spain, which are not listed as common law jurisdictions, are civil law jurisdictions.
Common law is a body of unwritten laws based on legal precedents established by the courts. Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators.
Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law relies on detailed records of similar situations and statutes as there is no official legal code that can be applied to a case at hand.
