Anaya Nolan
There are two main types of legal systems in the world: Common Law and Civil Law. 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. While civil law is the most widespread by landmass and population, common law is employed by the greatest number of people compared to any single civil law system. Common law was developed in England and later inherited by the Commonwealth of Nations, and almost every former colony of the British Empire has adopted it. Civil law, meanwhile, is typically followed by former French, Dutch, German, Spanish, or Portuguese colonies.
| Characteristics | Values |
|---|---|
| Number of Legal Systems | 2 |
| Name of Legal Systems | Common Law and Civil Law |
| Most Widespread System | Civil Law |
| Most Widespread System by Population | Common Law |
| Common Law Countries | Canada (excluding Quebec), Australia, New Zealand, most of the United Kingdom (England, Wales, and Northern Ireland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, the United States (excluding Louisiana and Puerto Rico), Bangladesh, Malta, and many other places. |
| Civil Law Countries | France, the Benelux countries, Italy, Romania, Spain, and former colonies of those countries, mainly in Latin America, Africa, and the Middle East; Germany, Austria, Russia, Switzerland, Estonia, Latvia, Bosnia and Herzegovina, Croatia, Kosovo, North Macedonia, Montenegro, Slovenia, Serbia, Greece, Portugal and its former colonies, Turkey, and East Asian countries including Japan, South Korea, and Taiwan (Republic of China); Northern Europe such as Denmark, Norway, Finland, Iceland, and Sweden. |
| Basis | Common Law is based on legal precedents, while Civil Law is based on legislative enactments. |
| Contracts | Common Law contracts are longer as they include all provisions, while Civil Law contracts are shorter as they include only a few provisions. |
| Origin | Common Law is influenced by Anglo-Saxon law, while Civil Law, also known as Roman Law, is derived from Roman law. |
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What You'll Learn
Common law vs civil law
There are two primary legal systems in the world: Common Law and Civil Law. Most countries adopt features from one or the other into their legal systems.
Common Law
Common law is a legal system that originated in medieval England. It is less prescriptive than civil law. Common law relies heavily on judicial precedent and past court decisions, recognising prior court decisions as legally binding precedent. Countries that follow a common law system are typically former British colonies or protectorates, including the United States.
Civil Law
Civil law is the most common legal system in the world, practiced in about 150 countries. It is generally more prescriptive than common law. Civil law is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law systems are characterised by their reliance on legal codes that function as the primary source of law. Civil law judges tend to give less weight to judicial precedent.
Differences
In a common law system, judicial decisions are binding, and there is extensive freedom of contract, with few provisions implied into the contract by law. 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 itself as inadequacies or ambiguities can be resolved by operation of law. In a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
Examples
Louisiana is the only US state whose private civil law is based heavily on French and Spanish codes, as opposed to English common law. Hong Kong, though part of China, uses common law. Macau has a Portuguese legal system of civil law.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a legally recognised marriage that does not involve a ceremony or registration with a state or religious body. Instead, it is a marriage that results from the agreement of the parties involved, followed by cohabitation.
The concept of common-law marriage is often misused to describe various types of couple relationships, such as cohabitation or other legally recognised relations. However, a true common-law marriage is a legal marriage, albeit one without the formalities typically associated with marriage. In a common-law marriage, the couple must meet certain requirements, including the intention to be married and holding themselves out to the world as a married couple.
The recognition of common-law marriage varies by jurisdiction. While some countries or states may not officially recognise common-law marriages, they may still respect the validity of such marriages lawfully entered into in another jurisdiction. In the United States, common-law marriage has existed since colonial times and is currently recognised in seven states and the District of Columbia, with nine other states recognising it with restrictions. In Canada, while common-law couples may enjoy many of the rights and responsibilities of marriage, they are not legally considered married but may be defined as "unmarried spouses" for certain purposes. In the United Kingdom, a 2008 poll revealed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples. Scotland does not recognise common-law marriage, although a similar concept called 'marriage by cohabitation with habit and repute' existed until 2006.
The history of common-law marriage can be traced back to ancient Greece and Rome, where marriages were private agreements between individuals and estates. In medieval Europe, marriage fell under the jurisdiction of canon law, which recognised as valid a marriage in which the parties stated they took each other as husband and wife, even without witnesses. The Catholic Church later forbade clandestine marriages at the Fourth Lateran Council in 1215, requiring all marriages to be announced in a church by a priest. England abolished common-law marriages in 1753 with the Marriage Act, which mandated that marriages be performed by a priest of the Church of England. However, this did not apply to the American colonies, where common-law marriage survived and continues to be recognised in some states today.
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Interstitial common law
Common law, also known as case law, is one of the two main types of legal systems in the world, with the other being civil law. Common law is largely based on judicial precedent and the style of reasoning inherited from the English legal system. It is practised in many countries, including Canada (excluding Quebec), Australia, New Zealand, the United Kingdom (excluding Scotland), South Africa, India (excluding Goa and Puducherry), and the United States.
Civil law, on the other hand, is prevalent in Europe and most non-Islamic, non-common law countries. It is derived from Roman law and is characterised by codified systems of law. In civil law jurisdictions, courts lack the authority to act without a statute, and judicial precedent is given less weight. This gives judges more freedom to interpret statutes independently.
In conclusion, interstitial common law is a type of common law that involves interpreting and applying existing laws to specific cases, contributing to the development of common law as a whole. Common law, in contrast with civil law, emphasises judicial precedent and has a wide reach across the world, influencing the legal systems of many countries.
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Common law evolution
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 was developed in England, influenced by Anglo-Saxon law and, to a lesser extent, the Norman conquest of England, which introduced legal concepts from Norman law, which itself originated in Salic law.
Common law is one of the most widespread legal systems in the world, as it is employed by the greatest number of people compared to any single civil law system. It is practised in Canada (excluding Quebec), Australia, New Zealand, most of the United Kingdom (England, Wales, and Northern Ireland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, Bangladesh, and many other places, as it was inherited by the Commonwealth of Nations and adopted by almost every former colony of the British Empire.
The United States also follows common law at the state and territorial levels, excluding Louisiana and Puerto Rico. The law of the State of New York is frequently chosen in commercial contracts, even when the parties have no direct connection to the state. This is because New York common law has a depth and predictability that is not yet available in any other U.S. jurisdictions.
The major difference between common law and codified civil law systems is the doctrine of stare decisis, or case law/precedent by courts. Common law countries are increasingly adopting codes similar to civil law systems in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law. For example, the Uniform Commercial Code (UCC) in the U.S. is a codified framework governing various aspects of commercial law.
The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence in civil law countries and the adoption of codes in common law countries.
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Common law in the US
Common law is one of the two main types of legal systems in the world, the other being civil law. Common law is derived from judicial decisions and legal precedents, while civil law relies primarily on codes and statutes. Common law is practiced in the United States at the state and territorial levels, excluding Louisiana and Puerto Rico. The United States inherited the common law system as a former colony of the British Empire.
The common law system in the United States is not a pure common law system as it has many codified statutes that courts must consider. However, the principle of stare decisis remains constant in US common law legal systems. This means that prior court decisions interpreting a statute are considered precedent and are binding, even if a common law court is interpreting a statute and not applying common law.
In the US, common law rules were originally fashioned based on English common law. Over time, the American legal system became mature enough to create its own common law rules from direct precedent or by analogy to comparable areas of decided law. While most common law is found at the state level, there is also a limited body of federal common law, which consists of rules created and applied by federal courts in the absence of any controlling federal statute.
At the state level, legislatures may codify common law rules from the courts of their state to give them permanence or to modify or replace them with legislation. For example, in 2018, the California Supreme Court issued a decision articulating a three-part test for determining whether California workers were independent contractors or employees. The California Legislature subsequently created a new section in the Labor Code that codified and expanded on this holding, which went into effect in 2020.
Common law has been influential in shaping the robust commercial systems in the United States. The law of the State of New York, in particular, is frequently chosen in commercial contracts due to its depth and predictability, even when the parties have no direct connection to the state.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It developed in England, influenced by Anglo-Saxon law and, to a lesser extent, the Norman conquest of England, which introduced legal concepts from Norman law.
Common law was inherited by the Commonwealth of Nations, and most former colonies of the British Empire have adopted it. Common law is practised in Canada (excluding Quebec), Australia, New Zealand, the UK (excluding Scotland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, the US (excluding Louisiana and Puerto Rico), Bangladesh, and many other places.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is regularly updated and aims to standardise codes to reduce bias in the application of laws. Common law, on the other hand, is unwritten and based on legal precedents and institutionalised opinions and interpretations from judicial authorities and public juries.
