Introduction
Legal systems vary across the world, but at least follow one type of system. The system it follows decides the whole legal proceedings across the country. And there are various legal systems all over the world. Every nation has created its own rules and regulations, which form the legal system for that country. Each country uses features from one type of legal system or sometimes countries use a combination of laws.
Legal systems have changed the outlook of the world. And in this article, we will analyse the legal systems and how they influenced the law of the world. The most known legal systems around the world are Common law and Civil law. And these two legal systems will be our concern in this following article. Common law is based on previous legal decisions, which are used to decide the cases in concern. Whereas, civil law protects the private rights of citizens and offers remedies to solve a dispute. Further, in this article, we are going to take a deep dive into the origination of legal systems and their uses in today’s court of law.
Civil Law vs Common Law
The main difference between civil law and common law is how both legal systems approach legal questions. Civil law focuses more on written laws and codified statutes, whereas common law focuses more on past decisions taken on a case to approach the current case. Some prefer following one of the laws, while some follow both and use some components from each. Both legal systems have different judgements at different times. Both laws originated from different countries. Civil law originated in continental Europe, and common law originated in England. Each of the laws plays a vital role in shaping the country’s legal system.
Difference Between Civil Law and Common Law in Tabular Form
| Parameters of comparison | Civil law | Common law |
| Origin | Civil law originated in continental Europe. | Common law originated in England. |
| Role of precedent (previous judgement) | In civil law, judges are bound to follow written laws and decisions. | In common law, judges follow precedents, i.e., the previous judgements taken in the court of law. |
| Legal Codes | It is based on the set of statutes written down. | It is based on the legal decisions taken by the court of law. |
| Jury Trials | It does not hold any jury trials. | It has jury trials. Countries following this law have jury trials. |
| Role of judges | Judges can make passive decisions based on written laws. | Judges play an active role in shaping the law through their decisions. |
| Legal Education | Education is more on the theoretical side. | Education is more practical and based on real examples. |
| Role of lawyers | In civil law, the case depends upon the lawyers and judges relying on them in how they make arguments. | In common law, lawyers are just advocates and judges play a more prominent role in deciding the outcome of the case. |
| Formality of proceedings | Civil law has more formal and rigid structured proceedings. more formal and rigid structured proceedings. | Common law proceedings are more flexible and informal. |
| Use of pre-trial procedures | In the civil law system, they try pre-trial methods such as meditation and conciliation before sending the matter to the court of law. | In common law, they hardly follow these procedures and mostly rely on adversarial litigation to look after disputes. |
| Burden of Proof | The burden of proof relies on the plaintiff, who must prove their case, by presenting it to the court of law. | In common law, the burden of proof between the parties depends on the nature of the claim. |
| Remedies | It provides a wider range of remedies as compared to common law. | It has a limited number of remedies, mostly related to damages. |
| Interpretation of the law | Civil law is interpreted by the legislature. | Common law is interpreted by the judiciary. |
| Statute of limitations | Civil law has longer statutes of limitations, as compared with common laws. | Common law has fewer statutes of limitations and the plaintiffs have more time to file the case. |
| Examples | Continental Europe (except Andorra, including Armenia, Azerbaijan, and Georgia), Latin America (except Guyana, Belize, and Cuba), and East Asia (except Hong Kong, China, and Vietnam). | Australia, United Kingdom (except Scotland), Israel, India, Cyprus, Nigeria, Singapore, Hong Kong, and vice versa. |
Civil Law
Civil law originated in ancient Rome, later it spread to other countries across Europe. Nowadays, countries that have a legal tradition are following civil law. It is more of a traditional law system.
It is purely based on written laws or codes passed by the legislature, i.e., parliament. This law covers all aspects of the legal system, including criminal law, commercial law and vice versa.
Under this law, judges have the sole right to decide on the case. They follow the codes and laws established by the legislature. It should be followed at any cost, no matter how much longer it is than other laws.
Civil law generally distinguishes substantive rules from procedural rules. It gives more focus to the statutory law. It often pairs with the inquisitorial system, but both have different principles and laws.
Under this law, codes exist which are preliminary defined into various interrelated articles. It explains the entitlements, laws, rights, and how legal mechanism works. The purpose to design a legal system like this was very simple. The aim is to keep citizens in the manner and follow the written laws, which should be applied in their daily lives. As mentioned above, judges not only play a key role in deciding a case but also need to strictly follow the written laws.
According to civil law, judicial decisions cannot be taken from any account of previous cases. It should be purely based on code provisions. Though in actual practice, a higher degree of precedent cases is also taken into consideration by a wide number of the nation’s highest courts.
In French-speaking courts, the decision is concise, short and apt. In German courts, the decision is a little lengthy and judges give wordy opinions, supported by logical reasoning.
History
Civil law is a merged model of codes derived from Roman law, Justinian law, and later in the Middle Ages expanded from Canon law. Justinian played an important role in giving a sophisticated model for family law, wills, contracts and vice versa. Justinian codes are also famous to be a good rulebook in the monarchical constitutional system.
Later on, Roman laws were greatly followed in the Byzantine Empire, until the fall of the Empire. The empire fell but the spread of Roman laws continued. It started to be followed by combining it with other native laws. It faced a wide influence across the West. In Roman Empire, it was partly followed because of the foreign scholars, who greatly changed the outlook of the nation. Some believed in following Roman law but others’ views did not match. This difference in the views stopped it from totally getting adopted in the country. Though our actual concern was that across Europe it also spread a great deal because the students of Roman law were the only trained lawyer, which benefitted them in seeing changes. But it faced rivalry from the Norman law. And combining some other consequences it was not primarily followed. It was followed only on the topics, where the local laws lacked further justification. But treating Roman law as a secondary option did not bring a great influence in many nations. This belief spread across Europe, and Roman law started to be followed as primary law. The local customs or beliefs also started to get judged based on Roman laws. Therefore, it became the main source of law.
You must be wondering why we shifted our focus to Roman laws. As Civil law is also known neo-Roman law or Romano-Germanic law. The term “Civil law” was translated from the Latin jus civile, which means “citizens’ law”. It was the late imperial term of the legal system. Later, civil law practitioners referred to it as jus commune.
The civil law system became the most widespread legal system across the world. Nearly around 150 countries followed this legal system in various forms. And by multiple forms, it means the use of Civil law is mixed with their native country's beliefs or laws. Civil law became the most intricate known legal system before the modern era.
Common Law
Common law or case law is the body of law made by judges and similar quasi-judicial tribunals by being stated in written opinions. It uses the judgements taken in past cases. And there is a principle defining that defines all this, i.e., Stare decisis, which states that cases' should be evaluated from consistent rules so that similar facts give out similar results.
What happens in Common law, i.e., if a dispute found to be similar to the previous 'dispute' and any judgement already made related to the same, then the judges are bound to follow the reasoning taken in the prior decision. If the 'dispute' found is fundamentally distinct from all the previous cases, then the judges have the right and duty to investigate the matter and take an independent decision.
Common law is often distinguished from statutory or regulatory law, which are the laws adopted by the legislative and the executive. It is called common as it is most common among legal professionals. It's uses are frequently seen in the decisions of the court. It is differentiated into two types are-
- General Common Law- It does not consider the presence of statutes or regulations. It is derived from the traditional and inherent authority of courts. Examples are criminal law and procedural law before the 20th century.
- Interstitial Common Law- The Decisions made by the court in law are promogulated by other bodies. It includes judicial interpretation of legislative statutes.
History
Common law was so common in all the courts of England, which originated in the practices of the courts of English kings followed by the Norman conquest in 1066. Later, the Britishers spread this legal system to all the colonies. Some colonies after their independence have still acquired this legal system. The common law so originated, which is based on the judicial precedent has originally inherited from the English legal system.
Today one-third of the world's population follows the "common law" jurisdiction or in mixed legal systems like civil law, criminal law and so on. Countries like Bangladesh, India, Canada, Kenya, Malaysia, New Zealand, Sri Lanka, Singapore and vice versa. There are many more countries which follow this legal system or combine this legal system with other legal systems.
Differences between Civil Law and Common Law (In points)
- The use of legal precedents in future cases or taking help from decisions already taken is fundamental in common law systems, but it is not of utmost importance in Civil law systems. Though countries that follow the blend of both common law and civil law take the help of legal precedents. For example, India is a country where the law takes help from the legal system.
- In the civil law systems, representatives get prepared and vote for the new law to be passed. The laws passed will be helpful in future and must be followed by the people under civil law. It is not the case in common law, where interpretation is followed.
- In "common law" systems, there is always a benefit of the doubt in criminal cases, because they take the help of precedents which can help them question the passed decision, whereas it is not the case in civil law.
- Civil law comes into the picture when there are claims of ignorance or negligence. It follows the plaintiffs and depends upon the defendant. In civil law, claims of negligence are not visible.
Conclusion
Throughout the article, we can see that both laws play a vital role in shaping the legal system of the countries. Various countries take the help of both legal systems, and we have seen some examples above. The point of concern is without any legal system, a country's law cannot run. And the law passed now also affects the future generation. Shaping the world today will get you the outcomes tomorrow. We must also remember that we should conduct our actions only acceptable by the law and keep our rights preserved.
References
- 7 Key Differences Between Common Law and Civil Law - Escape Artist
- Civil law (legal system) - Wikipedia
- https://en.wikipedia.org/wiki/Precedent
- https://en.wikipedia.org/wiki/Common_law
- https://legaldictionary.net/civil-law/
- https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/
