Anaya Nolan
The two primary legal systems used globally are common law and civil law. Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents and court decisions rather than codes or statutes. Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators, with clear rules for judges to follow in specific disputes. While common law is flexible and adaptable to societal changes, civil law provides a standardized framework that promotes order and reduces bias. Common law countries, often former British colonies, include the US, Canada, India, and Australia. Civil law countries, often former French, Dutch, German, Spanish, or Portuguese colonies, include many countries in Central and South America, Europe, and East Asia.
| Characteristics | Values |
|---|---|
| Basis | Common law is based on court decisions and precedents. |
| Civil law is based on codes and statutes. | |
| History | Common law can be traced back to English common law. |
| Civil law can be traced back to the Napoleonic Code and the Corpus Juris Civilis of Roman law. | |
| Flexibility | Common law is flexible and can respond to changes in society. |
| Civil law is less flexible as it requires lawmakers to pass changes in statutes and codes. | |
| Judicial decisions | Common law gives weight to the separation of powers between the judicial branch and the executive branch. |
| Civil law judges tend to give less weight to judicial precedent. | |
| Judicial authorities | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Civil law is based on the conditions set out in the applicable civil code. | |
| Freedom of contract | Common law provides extensive freedom of contract. |
| Civil law provides less freedom of contract as many provisions are implied by law. | |
| Geography | Common law is used in countries that were former British colonies or protectorates, including the US, Canada, India, and Australia. |
| Civil law is used in 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. |
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What You'll Learn
- Common law is a body of unwritten laws based on legal precedents
- Civil law systems rely primarily on codes and statutes
- Common law originated in England during the Middle Ages
- Civil law systems are more prescriptive than common law systems
- Common law systems are flexible and can respond to changes in society
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 draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence.
Common law, on the other hand, relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a specific case. The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts, promoting stability and consistency in the legal system. However, lower courts can deviate from precedents if they are outdated or if the current case is substantially different. While uncommon, lower courts can also choose to overturn a precedent.
The doctrine of precedent in common law, known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. Stare decisis is a Latin phrase that means "to stand by things decided". It is based on the principle that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. For instance, if a court makes a decision based on a specific set of facts, that decision is binding if the court rules on the same or a closely related issue in the future.
The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. Today, the US operates under a dual system of both common and civil law. Common law is also practised in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
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Civil law systems rely primarily on codes and statutes
Civil law systems, which originated in mainland Europe, rely primarily on codes and statutes. This is in contrast to common law systems, which are based on legal precedent and prior court decisions. Civil law is a comprehensive, codified set of legal statutes created by legislators. It is a system that centres around a clear and detailed framework of rules and codes, outlining everything from the procedures for handling claims to the punishment for offences.
Civil law systems are characterised by their reliance on written constitutions and specific codes, such as civil code, corporate law, administrative law, tax law, and constitutional law. These codes enshrine basic rights and duties, providing a consistent and standardised approach to the application of the law. The civil law system takes its origins from Roman law, specifically the Corpus Juris Civilis, and was further developed through the Napoleonic Code.
In civil law, there is a focus on clear rules for judges to follow when ruling on disputes. Unlike common law, civil law systems do not consider prior court decisions as binding in cases with similar facts. This means that each case is evaluated based on the applicable civil code and legislative decisions, rather than relying heavily on precedent. While civil law codes are subject to change, these changes are driven by the need to update statutes and ensure consistency in the application of the law, rather than by judicial precedent.
Countries that follow a civil law system include those that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, such as much of Central and South America, Central and Eastern European countries, and some countries in East Asia. Additionally, some African countries, including Egypt and the Francophone countries of North and West Africa, also adhere to the civil law system.
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Common law originated in England during the Middle Ages
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England during the Middle Ages, specifically in the King's Court (Curia Regis), a single royal court set up in Westminster, near London. This court system, established by Henry II, was permanent and expanded across all classes, from freemen to the highest-ranking nobles. Previously, the king's court was itinerant, meeting wherever the king happened to be.
The English common law system emerged in the centuries following the Norman Conquest of 1066. It replaced the pre-Norman system of local customs and varying laws in each locality with a unified legal system that gradually supplanted local folk courts and manorial courts. This new system was common throughout the country, which is why it is called "common law". The king's objective in establishing this system was to preserve public order, but it also brought significant profits from cases, fines, and forfeitures.
The development of common law was influenced by the expansion of the freemen class and the decline of feudalism and manorialism during the later Middle Ages. Freemen held their lands freely or leased them from landlords in exchange for rent payments. As central authority grew, it became responsible for guaranteeing the rights of ordinary people, as suggested by the Magna Carta, which dates back to 1215.
Common law is deeply rooted in stare decisis, which means "to stand by things decided". It relies on detailed records of previous similar situations and statutes because there is no official legal code for a specific case. Judges play a crucial role in determining which precedents apply to a particular case, and their decisions become binding precedents for future cases. This promotes stability and consistency in the legal system.
The English common law system has had a significant influence on the legal traditions of English-speaking countries and former colonies. It forms the basis of the legal systems in the United States and most Commonwealth countries, impacting around one-third of the world's population.
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Civil law systems are more prescriptive than common law systems
Civil law and common law are two distinct legal systems with different characteristics. Civil law systems are more prescriptive than common law systems, as they rely on a comprehensive set of codified legal statutes, or civil codes, that clearly define the law and the procedures for handling cases. These codes are created by legislators and function as the primary source of law, providing a structured framework for legal decision-making.
In contrast, common law, also known as case law, is a body of unwritten laws based on legal precedents established by courts. It relies on detailed records of similar situations and statutes as there is no official legal code. This means that common law is more flexible and open to interpretation, allowing judges to apply relevant precedents and make decisions based on institutionalized opinions and interpretations from judicial authorities and public juries.
One key difference between the two systems is the level of prescription and the role of legislation. Civil law systems are more prescriptive as they provide a detailed framework of laws and regulations that govern specific areas, such as corporate law, administrative law, tax law, and constitutional law. These codes are designed to create order, reduce bias, and ensure consistent outcomes by providing clear guidelines for judicial authorities.
On the other hand, common law systems are less prescriptive as they do not have a comprehensive set of codified laws. Instead, they rely on judicial decisions and precedents to establish standards of interpretation and promote consistency. While lower courts generally follow the example set by higher courts, they have the flexibility to modify or deviate from precedents if they are outdated or if the current case significantly differs.
The level of prescription also affects contract law. In civil law systems, there are often implied provisions and less emphasis on explicitly stating all terms in a contract. This can lead to shorter contracts compared to common law systems, where all terms governing the relationship between parties must be explicitly outlined in the contract itself.
Additionally, civil law systems tend to have a written constitution that enshrines basic rights and duties, providing a foundational framework for governance. This is in contrast to common law systems, which may not have a written constitution and instead rely on unwritten conventions and principles derived from judicial decisions.
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Common law systems are flexible and can respond to changes in society
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law systems are flexible and can respond to changes in society.
Common law systems can be traced back many centuries, with the system as we know it today originating in England during the Middle Ages. Common law is currently used in several countries, including the US, Canada, India, and Australia. It is a flexible system that can address situations not originally predicted by lawmakers and respond to changes in society. This is because common law does not require lawmakers to pass changes in statutes and codes, which can be a lengthy or impossible process. Instead, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act.
In common law systems, judges presiding over cases determine which precedents apply. The example set by higher courts is typically binding on cases tried in lower courts, promoting stability and consistency in the legal system. However, lower courts can modify or deviate from precedents if they are outdated or if the current case differs significantly from the precedent. While this occurs rarely, it allows common law systems to adapt to changes in society over time.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It aims to establish consistent outcomes by applying the same standards of interpretation as in civil law. However, elements of common law may differ between districts due to case-by-case traditions of individual jurisdictions. This flexibility allows common law systems to reflect the diverse values and beliefs of different communities within a society.
The flexibility of common law systems is particularly important as technology evolves and plays a growing role in our lives. Common law's ability to leave the legal code open for interpretation will become increasingly significant in adapting to new technological advancements and their impact on society.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided".
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is based on codes and statutes, and it clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence.
Common law relies on caselaw and legal precedent to guide decisions, whereas civil law systems primarily rely on codes and statutes. Common law is more flexible than civil law, as it can respond to changes in society without requiring lawmakers to pass changes in statutes and codes.
Common law is used in many countries that were former British colonies or protectorates, including the United States, Canada, India, and Australia.
Civil law is used in Continental Europe, Mexico, most of Central and South America, and some African countries including Egypt and the Francophone countries of the Maghreb and West Africa. Civil law countries also include much of Central and Eastern Europe and East Asia.
