This article is written by Ms. Nikara Liesha Fernandez from School of Law, Christ University, Bangalore. This article is a comparative analysis of the evolution and differences in the common and Roman law systems of justice prevalent in various countries all over the world.
Legal systems all over the world are characterized by their own unique set of rules and regulations to best suit and regulate the behaviour of the society they find themselves in. Broadly, however, all countries follow either a common law system or a Roman or civil law system of jurisprudence. Some countries have even developed a mixed legal system consisting of a combination of the two. This is known as a mixed legal system.
The most distinct basis of differentiation between the common and civil legal systems is that common law is governed by formal orders known as precedents or past judicial decisions whereas civil law is governed by codified statutes.
Some examples of common law countries are the United States of America, England, India and Canada. These countries were largely former British colonies. Countries that follow the civil law system are Japan, Germany, France and Spain as well as their colonies, which include a large part of Central and South America in addition to most of the Central and Eastern European and East Asian countries.
Evolution of Roman law and common law
The civil law tradition finds its roots in Western Europe, in 3 A.D. and was predominantly founded on Roman law, hence it is sometimes still referred to as the same. The first developers of the civil law concepts were men known as jurists or jurisconsults who were not lawyers per se but took it upon themselves to study the law and offer their legal opinion to those who sought it. Thus, the law was first derived from their legal commentaries.
In the 4th century, the Roman empire was split into two-
- The Eastern part, which came to be known as the Byzantium empire consisting of individuals from the Balkan states who fancied themselves as being the direct successors of the rulers of the Roman empire.
- The Western part, comprising Italy, Spain and France where the law was not consolidated and instead was broken up and vulgarized. Due to this, the law of Western Europe did not survive.
In the East, the Emperor at the time, Justinian, made it his goal to revive the glory of the Roman empire. To do this, he believed that his first task would be to revive the Roman law and consolidate and improve it. He thus enlisted certain scholars and jurists to carry out this task.
What was eventually formed from this effort was Justinian’s Civil Code known as the Corpus luris Civilis (in Latin) which consisted of four main parts:
- Digest, which was the writings of the jurists.
- Code, which was the imperial enactment.
- Novels, which were Justinian’s own enactments.
- Institutes, which served as textbooks for students who wanted to study the law.
When Justinian’s reign eventually came to an end, the development of the law came to a sudden halt as well. Relatively not much was known of the legal system followed in Eastern Rome until the 11th century when there was a rediscovery of the Corpus Juris Civilis in a library in Pisa. This Code was brought to Bologna, Italy wherein the scholars carried out an extensive study on the same and produced various editions of it with their individual commentaries written in the margins of the text to create a more sophisticated legal system.
News of this spread throughout Europe and scholars from across the country made their way to Bologna University to study law as a subject based on the Corpus Juris Civilis.
Influence of other cultures
The law that was developed by Justinian and his scholars was significantly modified over time due to the influence of the various conquerors of Europe throughout the ages. Along with foreign influence, the indigenous laws (also known as Jus Commune) also thrived simultaneously.
- Canon law was the law followed by the Catholic church in family issues such as marriage.
- Customary and feudal law were followed with regard to property and succession.
- Lex mercatoria was the law that governed all commercial activity of the land and seas.
As stated earlier, the language which was used to develop the field of law was Latin. However, between the 13th and 18th century French was being widely used by members of the legal fraternity due to foreign invasions by the French empire. This led to a sort of legal bilingualism.
Europe saw a period of political and intellectual turmoil in the 18th century which greatly influenced the principles of law as well. Jeremy Bentham, a modern thinker, in order to provide a sense of stability to the legal system, proposed the concept of legislation by which customs followed by society could be turned into statutory law through codification and would be logically organized according to the subject matter. This theory, however, did not gain much attention in Italy and rather gained a lot of popularity in France where the French Civil Code was formed mirroring Justinian’s Civil Code.
The concept of codification was spread gradually by Napoleon’s conquests to various other colonies all over the world as well. For example, the German Civil Code was also formed in the 19th century as a result of the failure of Prussian Landrecht which was the law followed by the Romans and French.
Common law arose in England in the provinces of Wales and Ireland. Its roots can be traced back to over 2,000 years ago when the ancient languages, which are now no more, of Welsh and Gaelic were spoken. Common law as we know it today, however, is said to have a large Anglo-Saxon nature. The Anglo-Saxons were considered to be Germanic warriors who had a language of their own. Several legal terminologies and processes of law which are followed even today can be traced back to the time of the Anglo-Saxons. These include the concept of moots, wills, compensation and oaths, to name a few.
In the year 600, Latin was introduced into society by the Christian missionaries. The Vikings of Denmark and the Scandinavians followed in the 9th and 10th centuries and integrated their respective languages with the prevailing legal languages of the country.
Finally, in 1066, the Norman conquest gave birth to a class of people that spoke French but wrote the laws in Latin. William the Conqueror, was the first king to make an attempt to unite all these different customs and traditions to form a unified legal system which would be common for the whole country to follow and hence gave birth to the term this law is known as today, i.e. ‘common law’.
Distinctive features of the common law system
Some distinctive features of the common law system are as follows-
- It is not necessary to have a written constitution or codified laws as cases are normally decided on the basis of precedents set by the courts of law themselves.
- Nature of judicial decisions- The judicial decisions made by the courts of law are binding. The two parts of the judicial decisions are the ratio decidendi and obiter dicta. The ratio decidendi or the rationale used by the judges to arrive at a particular decision is binding on the judges to use in future cases where the facts resemble that of the previously decided case. Obiter dicta are the comments made by the judge which merely provide additional information to further understand the facts and background of the case but have no binding authority on the decision of future cases.
- Common law has a more prescriptive nature in general. With respect to contracts, they tend to be longer and more extensive as more importance is given to the expressed terms rather than the implied meaning of the same to prevent any grey areas of misunderstanding between the parties in the future.
- The writings of legal scholars and experts have very little weightage under the common law system and the lawyers play the most active role.
- Lawyers take on an adversarial role wherein they are required to question the witnesses, formulate and present cases on the basis of evidence received and can even demand more evidence in case the same is insufficient.
- The common law system is more judge-centred where judges are given more autonomy and flexibility to use their discretionary power whenever they see fit thus allowing them to take on a more pragmatic approach.
The discrepancy between common law countries themselves
A unique difference that arises between countries following the same legal system, in this case, the common law system itself is evident in the case of the common law of the United States of America and that of the United Kingdom.
In the USA, the courts themselves have the authority to strike down any laws passed by legislators on the grounds of unconstitutionality or the same being a violation of the federal law. In the United Kingdom, however, only the Parliament, not the court of law, has the authority to revoke or make amendments to any legislation.
Distinctive features of a Roman law system
Some distinctive features of a Civil law/ Roman law system are as follows-
- A written constitution is almost always mandatory as this form of a legal system relies heavily upon the written codes, statutes and ordinances which are very specific in nature.
- Judicial precedents are not binding as the onus rests solely on the legislative enactments which are binding in nature.
- The writings of legal scholars and experts hold a lot of weight in court as compared to the common law system. They exercise more autonomy than even the judges in some cases.
- This legal system is less prescriptive in nature. With respect to contracts, the parties are not given sufficient autonomy to draft their own lengthy and extensive contracts as in the common law system, rather more importance is given to the implied meaning of the terms of the contract.
- The lawyers play an inquisitorial role rather than an adversarial one. The lawyers are required to present arguments on the basis of the evidence which the court finds rather than finding it themselves.
- The judges do not exercise considerable autonomy or discretionary powers and are bound by the codified statutes instead. Their role is merely to establish the facts of the case and apply the codified principles to the same in order to provide a remedy to the aggrieved party.
Mixed law countries
Countries even today seem to be figuring out the legal system they want to follow as since society itself is such a dynamic concept, the laws governing the same need to constantly change as well in order to remain relevant. Examples of some mixed law countries are-
- Quebec – Although Canada, as stated earlier, is a common law country, the legal system of Quebec is slightly different. Being a French province, it follows a largely civil law system but due to Canadian federalism, it is subject to some common law traditions as well.
- South Africa – The legal system in South Africa consists of an amalgamation of the native customary law, the English common law as well as certain aspects of civil law.
- China – For the longest time, China had a very primitive legal system that was not given much importance. However, in the face of it becoming a global power today due to industrialization and urbanization, it has become increasingly important that the country adopt a legal system that can tackle international legal issues. Due to this, China is still trying to reform its plain legal system to form a stronger resemblance of the common law system.
From the above analysis, it is evident that though there exist many differences between the common and civil law systems, these differences tend to be more procedural or in the nature of the methodology adopted, rather than any substantive factors. At the end of the day, the aim of both these systems is the same- to deliver justice. Thus, it would not be fair to say that one system is better than the other. In fact, due to modernisation and globalisation, the differences between common and civil law are significantly reducing as cases that involve more than one jurisdiction deal with the question of choice of law that often uses a combination of both common law and civil law depending on the circumstances of the cases. Thus, there will definitely be a time in the future where each system might have to take a page out of the other’s book to best tackle certain situations in the future.
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