Gavin Howe
The two main legal systems used today are common law systems and civil law systems. Common law systems rely on case law and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Common law, also known as case 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. Civil law systems are typically found in former French, Dutch, German, Spanish or Portuguese colonies or protectorates, while common law systems are found in former British colonies or protectorates.
| Characteristics | Values |
|---|---|
| Basis | Common law is based on judicial precedent and prior court decisions. |
| Civil law is based on legal codes and statutes. | |
| Binding | Common law decisions are binding in other cases with similar facts. |
| Civil law decisions are not binding in other cases, even with similar facts. | |
| Flexibility | Common law is flexible and adaptable to unforeseen situations. |
| Civil law is less flexible as it relies on written codes and statutes. | |
| Stability and Consistency | Common law promotes stability and consistency as outcomes are based on previous case law |
| Civil law may be less consistent as it allows for subjective, personal viewpoints. | |
| Separation of Powers | Common law gives more weight to the separation of powers between the judicial and executive branches. |
| Civil law allows individual officials to exercise both judicial and executive powers. | |
| Contracts | Common law contracts tend to be more detailed, specifying all terms and governing relationships. |
| Civil law contracts may be shorter, with some terms implied or resolved by operation of law. | |
| Influence | Common law originated in England and is used in former British colonies, including the US, Canada, India, Australia, etc. |
| Civil law originated in mainland Europe and is used in former French, Dutch, German, Spanish, and Portuguese colonies. |
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What You'll Learn
- Common law is based on judicial precedent, while civil law is based on legal codes
- Common law is flexible, civil law is not
- Common law originated in medieval England, civil law in mainland Europe
- Common law promotes stability and consistency, civil law does not
- Common law gives more weight to the separation of powers
Common law is based on judicial precedent, while civil law is based on legal codes
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law systems place great weight on precedent, and the decisions made in higher courts are binding on cases tried in lower courts. This promotes 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. Common law originated in England during the Middle Ages and spread to Wales, Ireland, and overseas colonies, including the United States, Canada, India, and Australia.
In contrast, civil law is a comprehensive, codified set of legal statutes created by legislators. It centers around a clear and detailed code of statutes that outlines procedures for handling claims, the types of cases that can be brought to court, and the punishment for offenses. Civil law, which originated in mainland Europe, provides a standardized framework to reduce bias and ensure consistent application of the law. While civil law codes are regularly updated, they require changes to be made by lawmakers, which can take significant time. Civil law judges tend to give less weight to judicial precedent, and their decisions are typically not binding in future cases with similar facts.
The primary distinction between common law and civil law lies in their approach to legal precedent and written codes. Common law heavily relies on stare decisis, a Latin term meaning "to stand by things decided," where prior court decisions interpreting statutes become precedent and are considered binding. On the other hand, civil law systems, such as the French civil law tradition, do not have a doctrine of stare decisis, and judges' decisions interpreting the code are generally not binding in subsequent cases.
The difference in their approaches leads to variations in flexibility and adaptability. Common law is flexible since it can respond to societal changes without requiring formal changes to statutes. It allows for interpretation and can address situations not originally contemplated by lawmakers. In contrast, civil law codes need to be constantly updated to reflect court precedents, as they aim to provide clear rules for judges to follow in specific disputes.
While common law promotes stability through consistency in following precedents, civil law achieves stability by providing clear and detailed codes that guide judges' rulings. Both systems strive for consistent outcomes, but common law relies on stare decisis, while civil law is based on a comprehensive set of written rules.
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Common law is flexible, civil law is not
Common law is a body of unwritten laws based on legal precedents established by the courts. It is flexible because it can respond to changes in society. It originated in medieval England and today, several countries around the world, including the US, Canada, India, and Australia, continue to rely heavily on common law when resolving legal disputes. Common law systems give more weight to the separation of powers between the judicial branch and the executive branch.
In common law systems, there is no official legal code that can be applied to a case at hand. 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. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case. Lower courts can also choose to overturn the precedent, but this rarely occurs.
Civil law, on the other hand, is based on legal codes and statutes. It is a comprehensive, codified set of legal statutes created by legislators. Civil law systems clearly define the cases that can be brought to court, the procedures for handling claims, and the punishment for offenses. Civil law originated in mainland Europe and is typically used in countries that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates.
Unlike civil law, common law does not require lawmakers to pass changes in statutes and codes. In common law systems, courts can address situations not originally predicted by lawmakers. When it comes to common law, higher courts can—and sometimes do—overrule prior decisions as "bad law," and they don't need to wait for lawmakers to do it for them. This flexibility allows common law to adapt to unforeseen situations and changes in society, making it a dynamic and responsive legal system.
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Common law originated in medieval England, civil law in mainland Europe
The common law system, as we know it, started in England during the Middle Ages. It is named so because it was common to all the king's courts across England and originated in the practices of the courts of the English kings following the Norman Conquest in 1066. Common law established a unified legal system, gradually replacing the local folk courts and manorial courts. It is a body of unwritten laws based on legal precedents established by the courts. It relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. The presiding judge determines which precedents apply to a particular case.
Civil law, on the other hand, originated in mainland Europe and is based on Roman law. It centres around a comprehensive code of statutes that clearly outline everything from the procedures for handling claims to the punishment for offences. Civil law statutes tend to be more detailed than common law statutes, making them more challenging to read. Civil law systems rely primarily on codes and statutes, and court decisions are not binding in other cases, even if the facts are similar.
Common law and civil law have distinct features and applications. Common law is known for its stability and consistency, as it is based on previous case law rather than subjective viewpoints. It is adaptable and flexible, allowing courts to address situations not initially predicted by lawmakers. In contrast, civil law provides clear rules for judges to follow in specific disputes.
Common law has been adopted by many countries, including the United States, Canada, India, and Australia, which use it to resolve legal disputes. Approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law. Many former British colonies continue to use the common law system today.
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Common law promotes stability and consistency, civil law does not
Common law and civil law are the two main legal systems used throughout the world today. Common law systems rely on case law and legal precedent to guide their decisions, while civil law systems rely primarily on codes and statutes.
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. In common law systems, the ultimate outcome is based on previous case law, promoting stability and consistency. Everyone involved knows that the outcome will be based on previous case law and not on subjective, personal viewpoints.
In common law systems, judges presiding over cases determine which precedents apply to a particular case. The example set by higher courts is binding on cases tried in lower courts. This system promotes stability and consistency in the legal justice system. Lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It centres around a comprehensive code of statutes that clearly outlines everything from the procedures for handling claims to the punishment for offences. Civil law systems have clear rules for how judges need to rule in specific disputes. However, civil law court decisions are not binding in other cases, even if the facts are similar.
While common law promotes stability and consistency through its reliance on previous case law, civil law does not have this same advantage due to its focus on codes and statutes rather than legal precedents.
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Common law gives more weight to the separation of powers
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law, also referred to as case law, draws from institutionalised opinions and interpretations from judicial authorities and public juries. It 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 presiding judge determines which precedents apply to a case.
Common law systems can be traced back to the Middle Ages in England. Several countries around the world, including the US, Canada, India, and Australia, rely heavily on common law when resolving legal disputes. The US operates under a dual system of both common and civil law.
Civil law systems, on the other hand, rely primarily on codes and statutes. Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that outlines everything from the procedures for handling claims to the punishment for offences. Civil law systems have clear rules for how judges need to rule in specific disputes.
Common law is adaptable and flexible. It can address situations not originally predicted by lawmakers and respond to changes in society. In common law systems, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to do so. Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints.
The separation of powers is a concept that requires the different branches of government to act as checks and balances on each other's power. It stems from French political thinker Montesquieu, who, in 1748, argued that the concentration of power in any single person or group of people was a threat to liberty. The separation of powers is reflected in the structure of the Australian Constitution, which divides power between the legislature, the executive, and the judiciary. The legislature (parliament) makes laws, the executive administers or enforces laws, and the judiciary adjudicates disputes about the law. The High Court of Australia ensures that judicial power is kept separate from legislative and executive powers.
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Frequently asked questions
Common law developed in England during the Middle Ages and is now used in several countries that were once part of the British Empire, including the United States, Canada, Australia, and India. On the other hand, civil law developed in mainland Europe, particularly in the Roman Empire.
In common law countries, the primary sources of law are statutes, judicial decisions made by judges in past cases (case law), and precedent. In civil law countries, the primary sources of law are codes and statutes created by the legislature, and legal scholars' writings.
In common law countries, judges interpret and apply the law to the facts of a case, whereas in civil law countries, judges play a more passive role, strictly applying the law as written in the codes and statutes.
In common law countries, legal terminology is often based on the English language and includes terms such as plaintiff, defendant, precedent, tort, contract, and negligence. In civil law countries, legal terminology is often derived from Latin and includes terms such as in rem, in personam, bona fide, and res judicata.
Common law countries rely on an adversarial legal system, where two opposing parties present their arguments and evidence to a judge or jury. Civil law countries, on the other hand, often follow an inquisitorial system, where judges play a more active role in questioning witnesses and gathering evidence.
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