Common Law and Civil Law: A Comparative Analysis
The Origins and Characteristics of Common Law
Origins of Common Law:
The common law system originated in England during the Middle Ages. It evolved from the decisions of royal courts, known as “courts of common pleas” or “King’s courts”, which provided a uniform system of justice throughout the country. This system was based on local customs and precedent – previous decisions by these courts – rather than written legislation.
Common law spread through the British Empire, and many former colonies, including the United States, Canada, Australia, and India, still maintain a common law system (though India also has substantial elements of civil law).
Characteristics of Common Law:
(1) Precedent (Stare Decisis): This is one of the most distinguishing features of the common law system. Courts base their decisions on the principles established in previous cases. Lower courts are bound to follow the precedent set by higher courts in their jurisdiction.
(2) Adversarial System: In common law jurisdictions, disputes are resolved through an adversarial system. The parties involved present their case before an impartial judge who determines the facts and applies the law to reach a verdict.
(3) Case Law: In the common law system, case law, or the decisions made by judges in previous cases, is a primary source of law. These decisions interpret statutes, regulations, constitutional provisions, and other case law.
(4) Jury Trials: Common law systems often use juries in criminal trials, and sometimes in civil litigation. The jury is responsible for determining the facts of the case, while the judge determines the applicable law.
(5) Flexible and Dynamic: The common law system is capable of adapting to changing societal conditions. As new situations arise, judges have the ability to create new legal principles, which then become precedent for future cases.
The Origins and Characteristics of Civil Law
Origins of Civil Law:
Civil law, also known as the continental or Romano-Germanic legal system, has its roots in the legal system of the ancient Romans. The term “civil law” itself is derived from the Latin term “jus civile,” which was the term for the laws that applied to Roman citizens.
The major consolidation of Roman law occurred under the Emperor Justinian in the 6th century, resulting in the Corpus Juris Civilis, a collection of fundamental works in jurisprudence that served as the basis of civil law in many countries around the world. It spread through much of Europe during the Middle Ages and was adopted and adapted over time in different countries.
Characteristics of Civil Law:
(1) Code-Based: The primary source of law in civil law jurisdictions is statutory law. The legal rules in these systems are generally organized into codes, a systematic collection of interrelated articles, such as a civil code or a criminal code.
(2) Inquisitorial System: Civil law systems typically use an inquisitorial process in which the judge plays a more active role in guiding the case, gathering and evaluating evidence, and questioning witnesses.
(3) Less Emphasis on Precedent: While court decisions are considered to be interpretations of the law and can be referred to for guidance, they are not considered binding precedents as they are in common law jurisdictions.
(4) More Detailed Legislation: Civil law codes tend to be more comprehensive and detailed than laws in common law systems. This is because they aim to cover all foreseeable issues that could arise in relation to a particular topic.
(5) Division of Laws: In civil law jurisdictions, the law is often divided into public law, which governs relationships between individuals and the state, and private law, which governs relationships between individuals.
Comparative Study of Common Law and Civil Law Systems
Common Law and Civil Law systems are the two main legal traditions in the world, each with its own unique features and complexities. Here’s a comparative analysis of both:
(1) Origins and Development: The Common Law system originated in England during the Middle Ages and was exported to many countries through British colonial expansion. Civil Law, on the other hand, is rooted in Roman Law and was codified in the Corpus Juris Civilis under Justinian. It became the foundation for most European legal systems.
(2) Primary Source of Law: In Common Law systems, case law or judicial precedents are the primary sources of law, while statutes and regulations play a complementary role. In Civil Law systems, comprehensive legal codes are the primary source of law, with court decisions serving more as interpretations of those codes rather than binding precedents.
(3) Role of Courts: Common Law courts have a more creative role because their decisions can set binding precedents for future cases. In contrast, Civil Law judges have a more application-oriented role, interpreting and applying the law as codified in legal statutes.
(4) Legal Procedures: Common Law jurisdictions typically use an adversarial system, where the judge acts as a neutral referee between opposing parties. Civil Law jurisdictions, conversely, use an inquisitorial system, where the judge takes a more active role in investigating the facts of the case.
(5) Flexibility and Certainty: Common Law is often seen as more flexible because it can adapt and change through judicial decisions. This, however, can lead to uncertainty as future decisions may change established precedents. Civil Law, with its comprehensive codes, offers greater predictability but may be less able to adapt to societal changes quickly.(6) Use of Juries: Juries are more commonly used in Common Law systems, particularly in criminal cases. In Civil Law systems, juries are used less frequently, and many cases are decided by professional judges.