Anaya Nolan
The common law system is a legacy of the British Empire and is the foundation of legal systems in the US, UK, Canada, Australia, and New Zealand, as well as in former British colonies or protectorates. Common law is based on precedent, where judicial decisions are binding and can only be overturned by the same court or through legislation. In contrast, civil law, which is followed in former French, Dutch, German, Spanish, and Portuguese colonies, is a codified system of law that originates from Roman law. It is generally more prescriptive, with written constitutions based on specific codes, and judicial interpretation is considered a drawback. While some argue that common law is better due to its fluidity and adaptability, others prefer civil law for its consistency and accessibility. Ultimately, both systems have their strengths and weaknesses, and with increased globalization, legal systems worldwide are borrowing from each other to achieve the best possible outcome.
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What You'll Learn
- Common law is a body of unwritten laws based on precedents
- Civil law is a codified system of law with roots in Roman law
- Common law is practised in former British colonies, civil law in former French, Dutch, German, Spanish or Portuguese colonies
- Common law is adversarial, civil law is investigatory
- Common law appoints judges with legal careers, civil law appoints graduates
Common law is a body of unwritten laws based on precedents
Common law, also known as case law or judge-made law, is a body of unwritten laws based on precedents. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that judges rely on the history of judicial decisions or precedents to evaluate and decide future cases.
Common law originated in England, and it evolved from a British tradition that spread to North America during the 17th and 18th centuries. Today, common law is practised in several countries, including the United States, Canada, Australia, India, and the United Kingdom. It is one of the two main legal systems in the world, with the other being civil law.
In a common law system, judges play a crucial role in interpreting and applying the law. They draw from institutionalised opinions and interpretations and precedents established by higher courts to decide new cases. This system promotes stability and consistency because everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints. Additionally, common law is adaptable to unforeseen situations as it allows judges to address scenarios not originally contemplated by lawmakers.
However, the reliance on precedents in common law has also been criticised for perpetuating outdated or biased decisions that marginalise certain groups. For example, in England, common law held that fathers were entitled to custody of the children in divorce cases, which effectively kept women trapped in marriages. It is important to note that societal changes can prompt a judicial body to overturn such precedents, but this may take time and effort from marginalised parties.
In conclusion, common law, as a body of unwritten laws based on precedents, offers both benefits and challenges. It provides stability, consistency, and adaptability by allowing judges to rely on past decisions and address new situations. However, it also carries the risk of perpetuating unfair rulings until societal changes lead to the overturning of outdated precedents.
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Civil law is a codified system of law with roots in Roman law
The codification of civil law was developed during the 17th and 18th centuries AD, influenced by the ideas of the Enlightenment and natural law. The concept of codification allowed for certainty, unity, and systematic recording of the law. Civil law codes are a systematic collection of interrelated articles, arranged by subject matter in a pre-specified order. These codes explain the principles of law, rights, and entitlements, and how basic legal mechanisms work. The purpose of codification is to provide all citizens with a written collection of the laws that apply to them.
Civil law is often contrasted with common law, which originated in medieval England and is practiced in countries that were former British colonies or protectorates, such as the United States, Australia, Canada, and India. Common 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.
While civil law is characterized by its reliance on legal codes, common law recognizes prior court decisions as legally binding precedent. Common law contracts tend to be longer than civil law contracts because they set out all the terms governing the relationship between the parties. In contrast, civil law systems imply many provisions into a contract by law.
Overall, civil law, with its roots in Roman law, offers a well-organized and adaptable system that promotes cooperation, order, and predictability.
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Common law is practised in former British colonies, civil law in former French, Dutch, German, Spanish or Portuguese colonies
Common law, which originated in England, is practised in former British colonies. Common law is based on custom and precedent and is considered a stable and slow-to-change legal system. It was introduced to British colonies in North America, South Africa, Australia, Asia, and Africa, and became the legal foundation of all British colonies of domination. In some colonies with a sparse indigenous population and continuous European immigration, English common law was established as the sole legal system. In others, such as India, a practice of legal pluralism emerged, where local judges handled indigenous cases according to local customary law. Over time, as British colonies gained self-governance and eventually independence, they adapted and amended the common law to suit their specific contexts and needs.
Civil law, on the other hand, is practised in former French, Dutch, German, Spanish, and Portuguese colonies. Civil law is based on statute rather than custom, and judges apply principles from statutes or law codes instead of relying on case precedent. The French variant of civil law, known as the Napoleonic Code, forms the basis of the legal systems in Belgium, Luxembourg, Italy, Spain, and many of France's former colonies, as well as Latin American countries. The German Civil Code prevails in Austria, Switzerland, Scandinavian countries, and certain countries outside Europe, such as Japan.
Dutch colonies historically followed Roman-Dutch law, a mixed system influenced by Roman law and Germanic tribal law. However, in 1809, the Napoleonic Code superseded the old Dutch law, and in 1838, a new Dutch civil code was introduced. Portuguese civil law, which is based on the country's constitution, civil code, penal code, labor code, and commercial societies code, is practised in former Portuguese territories, including Angola, Brazil, and Guinea-Bissau, with some local adaptations.
Spanish colonial law was characterised by a patchwork of laws and overlapping jurisdictions, with the Spanish Crown at the apex. The Council of the Indies, established in 1524, possessed supreme legal, administrative, military, trade, finance, and religious authority. Spanish colonial law was influenced by canon law and crown law, and royal officials were expected to protect native customs and traditions in their legal decisions, as long as they did not contradict Catholic doctrine or natural law.
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Common law is adversarial, civil law is investigatory
There are two main types of legal systems in the world: Common Law and Civil Law. Common law is also known as case law, and is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law systems are adversarial, with the judge moderating between two opposing parties. In an adversarial system, the prosecution and defence compete against each other, and the judge serves as a referee to ensure fairness to the accused. The system assumes that the best way to get to the truth of a matter is through a competitive process to determine the facts and application of the law accurately.
Civil law, on the other hand, is a codified system of law that originates from Roman law. Countries following a civil law system are typically former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern Europe, and East Asia. Civil law systems are inquisitorial, characterized by extensive pre-trial investigations and interrogations with the objective of avoiding bringing an innocent person to trial.
In a common law system, there is extensive freedom of contract, and few provisions are implied into the contract by law. This means that it is important to set out all the terms governing the relationship between the parties to a contract in the contract itself, resulting in longer contracts compared to those in civil law countries. 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, as there is less importance placed on setting out all the terms in the contract itself.
While common law is not common in the United States, several states have statutes that allow for common law marriage, also known as a non-ceremonial marriage, where couples can be considered married without having formally registered their union.
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Common law appoints judges with legal careers, civil law appoints graduates
There are two primary 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. Countries that follow this system are typically former British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. In common-law countries, judges are often appointed and are usually chosen from among those with distinguished legal careers.
Civil Law, on the other hand, is a codified system of law that originates from Roman law. Countries that follow this system are typically former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern Europe, and East Asia. Civil-law countries tend to select judges through competitive examinations, and these judges often begin their judicial training right after completing their university or law school education, which means they are frequently in their mid-twenties when they join the bench.
The appointment process for judges in common-law countries tends to favour those with extensive legal experience. This can include practitioners who have had distinguished careers as lawyers or judges. For example, in the United States, Supreme Court justices are typically appointed by the President from among a pool of experienced judges and legal scholars. Similarly, in the United Kingdom, while there is no formal requirement for Supreme Court justices to have prior judicial experience, most appointees have had distinguished careers as barristers or academics.
In contrast, civil-law countries often place more emphasis on academic knowledge and examination results when selecting judges. For example, in France, candidates for the judiciary must pass a competitive examination after completing their legal studies. Those who pass are then appointed as judges, and their rank is determined by their examination performance. Similarly, in Germany, candidates must undergo a two-stage state examination, and those who pass are then appointed as judges or prosecutors.
While common-law countries tend to appoint judges with legal careers, it is important to note that there are exceptions. For instance, in a few countries like Bolivia, Mexico, and Switzerland, judges are directly elected to their positions by the people or by parliament. Additionally, some common-law countries may also use competitive examinations for selecting lower-court judges, while still emphasizing legal experience for higher-court appointments.
Ultimately, the selection process for judges varies depending on the country's legal tradition and specific requirements for the position. Both common-law and civil-law systems have their own methods for appointing judges, reflecting the unique characteristics and priorities of each legal tradition.
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Frequently asked questions
Civil law is largely based on Roman law and is a codified system with written constitutions based on specific codes. Common law, on the other hand, is based on precedent and tends to be less prescriptive, with more freedom of contract.
Countries that follow civil law are typically those that were former French, Dutch, German, Spanish, or Portuguese colonies, including much of Central and South America. Common law countries, meanwhile, tend to be former British colonies or protectorates, including the United States, the United Kingdom, Canada, Australia, and New Zealand.
Under common law, judges are usually appointed after successful legal careers, while civil law jurisdictions tend to appoint judges straight out of university.
It is difficult to say that one system is better than the other. Both have their strengths and weaknesses, and through increased globalisation and the sharing of legal ideas, legal systems from different countries are cooperating to achieve the best laws possible.
