This article is written by Vivek Maurya from ICFAI Law University, Dehradun. In this article, the author has compared civil law countries with common law countries.
Table of Contents
Introduction
The legal systems of countries all over the world are divided into two categories: common law systems and civil law systems. There are around 150 nations with predominantly civil law systems, compared to approximately 80 countries with common law systems.
The basic distinction between the two systems is that in common law countries, case law in the form of published court opinions is of primary significance. Whereas, in civil law countries, codified legislation prevails but these distinctions are not as obvious as they appear. In reality, many countries combine elements of common and civil law systems.
The historical origins of common and civil law systems
The English Crown, which used to issue written commands called “writs” when justice needed to be done, was the basis of the common law system. Since, writs were not adequate to cover all situations, equity courts were eventually formed to hear complaints and develop suitable remedies based on equitable principles derived from numerous sources of authority (such as Roman law and “natural” law). It became feasible for courts to seek up precedential views and use them in current cases as the judgments, which were being gathered and published. It was in this way that common law was born.
In some European countries, civil law may be traced back to a system of rules created by the Roman Emperor Justinian around 600 C.E. Authoritative legal codes based on these laws evolved throughout many centuries in different nations, resulting in comparable legal systems with their unique sets of laws.
Civil law system
There is usually a written Constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law, and constitutional law) enshrining basic rights and duties; administrative law, on the other hand, is usually less codified, and administrative court judges behave more like common law judges.
Legislative enactments are the ones that are regarded as universally binding. In civil, criminal, and commercial courts, there is a limited opportunity for judge-made legislation but judges in practice prefer to follow earlier judicial judgments. Constitutional and administrative courts have the power to invalidate laws and regulations, and their rulings are binding on all.
There are generally distinct constitutional, administrative, and civil court systems that pronounce on the compatibility of legislation and administrative acts and they also interpret the underlying codes.
Less freedom of contract, numerous conditions are implied by law in a contract and parties are unable to negotiate out of some obligations.
Countries following the civil law system
Civil law countries are generally former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, covering much of Central and South America. The majority of Central and Eastern European and East Asian nations adopt a civil law system as well –
China
Civil law plays a vital role in the People’s Republic of China’s (“PRC”) legal system. Civil law is a fundamental law that governs the property and personal relationships of equal subjects and serves as the foundation for many types of special enactments and economic regulations in the economic sectors.
Japan
Japan’s legal system is characterized as a civil law system based on codified law. The legislative heart of the system is formed by the Constitution and the five primary Codes: civil, civil procedure, criminal, criminal procedure, and commercial.
Germany
Germany’s federal Constitution is known as the Basic Law, which is drafted and codified. The federal states also have their own written and codified Constitutions. Although, they are of secondary importance in practice because federal law supersedes state law.
France
France has a civil legal system, which implies that legislation is contained in numerous codes and takes precedence over case law. In civil law systems, the concept of stare decisis does not apply since each case is determined on an individual basis based on how it relates to the codified law and how the judge decides to interpret that legislation. As a result, two instances on the same issue may have quite different conclusions.
Common law system
The laws that govern a case are founded on both legal precedents established by judges and statutory laws established by legislators. In an adversarial system, the judge acts as a neutral referee between competing parties in a dispute. The facts may be determined by a jury but the law will be applied by a judge.
Prosecutors and defense counsel play an active role, while victims serve as witnesses and may have rights to information and limited involvement as victims. However, victims are not a party in criminal prosecutions.
Countries following the common law system
Countries that use the common law system are usually former British colonies or protectorates –
The United States
The American legal system is a “common law” system that largely depends on court precedent in formal adjudications. Even when a statute is in question, judicial judgments in previous court cases are highly important to the court’s resolution of the subject before it.
England
The common law legal system in England is based on the subject matter heard in previous cases, as well as the law made by judges. It began during King Henry II’s reign (1154-89) when numerous local customary rules were replaced by new national laws that applied to everyone and therefore were “common to all.”
India
The Indian judicial system is founded on the common law system, which was acquired from the British colonial heritage and is based on documented court precedents. The Supreme Court of India, High Courts, and subordinate courts at the district, municipal, and village levels make up India’s court system.
Canada
Canada is a bijural country in which common and civil law coexist except for the province of Québec, the common law tradition applies across Canada in all aspects of public law (e.g., criminal law, administrative law). In Québec, civil law governs all aspects of private law, including family and child law.
Comparing civil law countries and common law countries
Many individuals don’t pay much consideration to the distinction between civil law and common law until they encounter a legal problem. Both forms of legislation are used in various nations across the world depending on the nature of the event. Here are some of the main distinctions between the two systems –
- Approach of the legal process
The two legal systems, common law and civil law are the result of fundamentally different approaches to the legal process. The basic concepts and norms of civil law are written in codes and legislation which are applied by the courts. As a result, codes and legislation predominate with case law serving as a secondary source of law. On the other hand, in the common law system, the law has been primarily formed through court decisions with little regard for a conceptual structure.
- Role of a legislator
Civil law is founded on the idea of separation of powers, which states that the job of the legislature is to legislate, while the role of the courts is to implement the law. In common law, on the other hand, the courts are tasked with establishing the law.
- Lawyer’s approach to a case
Civil law is founded on codes that include logically linked concepts and regulations, beginning with fundamental principles and progressing to particular laws. A civil lawyer often begins with a legal standard found in legislation and deduces conclusions about the particular situation. A lawyer in common law, on the other hand, begins with the actual case and compares it to the same or comparable legal concerns that have been dealt with by courts in previously decided cases and the binding legal rule is derived by induction from these relevant precedents. As a result of this basic difference between the two systems, attorneys in civil law nations are seen to be more intellectual, whilst lawyers in common law countries are thought to be more practical.
- The binding force of precedents
In the civil law system, the courts’ main task is to decide specific cases by applying and interpreting legal norms. In the common law system, the courts are supposed not only to decide disputes between specific parties but also to provide guidance on how similar disputes should be resolved in the future. A court’s interpretation of legislation in a specific case is binding on lower courts, thus under common law, court decisions continue to serve as the foundation for interpreting legislation.
- Binding effect of a contract
A contract has no binding effect in common law unless it is backed by consideration. The theory of consideration states that a contract must be backed by something of value, such as a party’s commitment to delivering goods or services or a promise to pay for goods or services. A contract, on the other hand, cannot exist under civil law without a valid cause (causa). The reason why a party enters into a contract and agrees to execute contractual duties is referred to as the cause. Cause differs from consideration in that the reason for which a party binds himself does not have to be to gain something in return.
A party may, for example, engage in a gratuitous contract that binds him to execute a duty for the benefit of the other party without receiving any compensation because only a person who has given consideration may enforce a contract. One of the primary practical ramifications of the distinction between consideration and cause is that common law does not accept contracts in the interest of a third-party beneficiary.
Role of lawyers and judges in each system
In civil law countries, judges are often referred to as ‘investigators’. They usually lead to actions by bringing charges, verifying facts by examining witnesses and applying solutions found in legal codes. Lawyers continue to advocate their clients’ interests in civil procedures, although their position is less essential. However, like in common law regimes, their duties typically involve counseling clients on legal matters and writing legal petitions for submission with the court.
However, when compared to a common law system, the importance of oral debate, in-court presentations, and active lawyering in court is lessened. Non-litigation legal activities, such as will writing and contract drafting, may also be delegated to quasi-legal professionals who assist corporations and private persons but do not have a post-university legal degree or are not licensed to operate before courts.
In a common-law nation, attorneys make presentations to the judge (and occasionally the jury) and question witnesses. The procedures are subsequently “refereed” by the judge, who has slightly more discretion than in a civil law system to construct an acceptable remedy at the end of the case. In some situations, attorneys appear in court to persuade people on issues of law and fact and they play an active part in judicial procedures. In addition, unlike in certain civil law jurisdictions, it is illegal for anyone other than a fully licensed lawyer to produce legal papers of any sort for another person or entity in common law countries such as the United States.
Lawyers, regardless of where they operate, always have an important role to play in formal conflict settlement. However, the exact duties that they are allocated tend to differ quite a little. Outside of the courtroom, duties that would normally be handled by attorneys in one nation may be handled by qualified laymen in another.
Conclusion
The distinctions between civil law and common law systems are based on argumentation techniques and approaches rather than the content of legal standards. Both civil law and common law seek the same objective using distinct methods, and identical conclusions are frequently achieved through alternative reasoning. The fact that common law and civil law arrive at the same or similar answers while using different methods is not unexpected, given that the subject matter of legal regulation and the underlying values in all legal systems are more or less the same.
References
- https://ppp.worldbank.org/public-private-partnership/legislation-regulation/framework-assessment/legal-systems/common-vs-civil-law
- https://www.sciencedirect.com/topics/social-sciences/civil-law-system
- https://www.britannica.com/topic/common-law
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