Kara Sears
Civil law and common law are two distinct legal traditions that are used in different parts of the world. Civil law, also known as continental or Romano-Germanic law, is a codified system of legal statutes created by legislators. It is found on all continents and covers about 60% of the world, including countries in Continental Europe, Central and South America, Asia, and Africa. On the other hand, common law is a body of unwritten laws based on legal precedents and court decisions. Several countries, including the US, Canada, India, and Australia, rely heavily on common law to resolve legal disputes. China, Hong Kong, and the UK operate under a dual system of both common and civil law.
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What You'll Learn
- Common law is unwritten, based on legal precedents and used in the US, UK and more
- Civil law is codified, based on Roman law and used in France, Germany, China and more
- Common law's flexibility can lead to unfair marginalization of certain groups
- Civil law aims to reduce bias by standardising codes, but may lack flexibility
- Common law contracts are longer, civil law contracts are shorter
Common law is unwritten, based on legal precedents and used in the US, UK and more
Common law is a body of unwritten laws based on legal precedents and institutionalised interpretations established by the courts. It is distinct from civil law, which is predominantly characterised by reliance on legal codes as the primary source of law. Common law is used in the United States, the United Kingdom, and several other countries.
Common law originated in medieval England and has since been adopted by countries that were historically British colonies or protectorates, including the US, Canada, Australia, India, and Hong Kong. In the US, 49 states and Washington, DC, are common law jurisdictions, with Louisiana being the only state that uses civil law. The Basic Law of Hong Kong ensures the use and status of common law in the region.
Common law is based on judicial precedent, where judges and courts must follow prior decisions, rulings, or case law when addressing similar matters in the future. This is known as the legal doctrine of stare decisis. While common law is unwritten, it can be written and expanded based on the needs and circumstances of a case. For example, the UK has long recognised the common-law offence of "outraging public decency". In recent years, this unwritten law has been used to prosecute a new intrusive activity called "upskirting", leading to the Voyeurism (Offences) Act of 2019, which officially criminalised the act.
Common law allows for extensive freedom of contract, with few provisions implied into a contract by law. This means that all terms governing the relationship between the parties to a contract must be explicitly set out in the contract itself, often resulting in longer contracts compared to civil law countries.
While civil law is the world's most common legal system, practised in about 150 countries, common law is also widely used and followed by around 80 countries. Civil law systems are typically found 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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Civil law is codified, based on Roman law and used in France, Germany, China and more
Civil law is a legal system rooted in the Roman Empire, which was comprehensively codified and disseminated starting in the 19th century. Civil law is characterised by its reliance on legal codes that function as the primary source of law, in contrast to common law systems which rely heavily on judicial precedent. Civil law systems are found on all continents and cover about 60% of the world, practiced in about 150 countries.
France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900) are notable examples of civil law codification. The French codes were imported into areas conquered by Napoleon and later adopted with modifications in Poland, Louisiana, Switzerland, the Netherlands, Serbia, Italy, Romania, Portugal, and Spain. Germany's civil code was adopted in Switzerland and Brazil, and strongly influenced the codification of China, which is still in effect in Taiwan.
Several countries have civil law systems that contain elements of other legal traditions. For example, Chinese law (except in Hong Kong and Macau) is a mixture of civil law and socialist law, with some features of the common law system. Hong Kong, though part of China, uses common law. Several Islamic countries have civil law systems with elements of Islamic law, such as Egypt, which forms the basis for civil law in many countries of the Arab world.
Scandinavian countries, along with Finland, the Faroe Islands, Greenland, Åland, and Iceland, have a unique "Nordic" version of jurisprudence that is neither a civil law system nor a part of the common law system.
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Common law's flexibility can lead to unfair marginalization of certain groups
Common law is a body of unwritten laws based on legal precedents established by the courts. It is distinct from civil law, which is rooted in the Roman Empire and relies on written codes as its primary source of law. Common law originated in medieval England and continues to influence legal systems around the world, including in the US, UK, and Hong Kong.
While the flexibility of common law allows it to adapt to changing social norms and values, it has also led to criticism that it can perpetuate the unfair marginalization of certain groups. The reliance of common law on judicial precedent means that past decisions, even if outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This inertia in the system can make it difficult for marginalized groups to achieve equal rights and protections under the law.
For example, in England, common law held that fathers were entitled to custody of the children in cases of divorce, a bias that kept women trapped in marriages until this precedent was overturned in the 1970s. Similarly, common law has been used to prosecute "outraging public decency," which has been applied to criminalize upskirting, a practice that involves taking non-consensual photos or videos of private parts for sexual gratification or to humiliate or distress.
The flexibility of common law can also lead to inconsistent application and interpretation of laws across different jurisdictions. This can result in elements of common law differing between districts, potentially marginalizing certain groups in specific regions. Additionally, the influence of societal norms and values on common law means that it may not adequately protect marginalized groups, particularly in contexts of significant social change.
To address these concerns, legal systems that primarily use common law often supplement it with written legislation that clarifies and updates the law to reflect changing social values and protect marginalized groups. For example, in the case of upskirting, the UK Parliament passed the Voyeurism (Offences) Act in 2019, which officially criminalized the act and provided specific penalties.
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Civil law aims to reduce bias by standardising codes, but may lack flexibility
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is a legal system 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). It is the world's most common legal system, practised in about 150 countries.
Civil law aims to reduce bias by standardising codes. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardised codes is to create order and reduce biased systems in which laws are applied differently from case to case.
However, civil law may lack flexibility due to its standardised nature. Civil law codes must be constantly changed because the precedent of courts is not binding and because courts lack the authority to act without a statute. In some civil law jurisdictions, the judiciary does not have the authority to invalidate legislative provisions. For example, the civil law system in Nordic countries has deviated significantly from its classical Roman and German models, resulting in a "Nordic" version of jurisprudence that is neither a civil law system nor a part of the common law system.
Common law, on the other hand, is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and is characterised by its reliance on judicial precedent rather than legal codes. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. While the goal of common law is to establish consistent outcomes, past decisions can lead to the marginalisation or disempowerment of certain groups.
Today, the US operates under a dual system of both common and civil law. Several other countries, such as China, Puerto Rico, and Hong Kong, also use a mixture of common and civil law.
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Common law contracts are longer, civil law contracts are shorter
Common law is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and is used in several countries that were former British colonies or protectorates, including the United States, the United Kingdom, Canada, Australia, and Hong Kong. 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.
Civil law, on the other hand, is a legal system rooted in the Roman Empire and is currently practiced in about 150 countries. It is characterized by its reliance on legal codes that function as the primary source of law. Civil law systems are typically found in countries that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern European countries, and some East Asian countries. Civil law also serves as the basis for socialist law used in communist countries.
When it comes to contracts, those drafted in common law jurisdictions tend to be longer than those in civil law jurisdictions. This is because common law systems have fewer provisions implied into a contract, requiring that all terms governing the relationship between the parties be explicitly set out in the contract itself. Common law contracts are also more flexible, as they rely on judicial interpretation and precedent rather than explicit stipulations within the contract.
In contrast, civil law contracts are often shorter due to the reliance on codified laws and default rules. Civil-law drafters can use specific terms that have a statutory meaning, which need not be defined in the contract. Additionally, civil law systems are generally more prescriptive than common law systems, with many provisions implied into a contract by law. This results in civil law contracts being more detailed and less flexible than their common law counterparts.
It is important to note that the distinction between common-law and civil-law contracts is blurring. Lawyers drafting contracts in international transactions should be aware of the differences between the two systems to avoid confusion and ensure clear and concise contracts.
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Frequently asked questions
Common law originated in England during the Middle Ages and is still used in several countries today, including the US, Canada, India, and Australia. Hong Kong, despite being a part of China, also uses common law.
Civil law, also called continental or Romano-Germanic legal systems, covers about 60% of the world. Civil law systems are found on all continents and are used in countries like France, Italy, the Netherlands, Spain, Chile, Belgium, Luxembourg, Portugal, Brazil, Mexico, and many others. Civil law is also used in some parts of the US, like Louisiana and Quebec in Canada.
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. Civil law, on the other hand, is a comprehensive set of codified legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishments for offenses.
