Difference Between Common Law and Civil Law: Common Law and Civil Law are two types of legal systems found in every country in the world. There are about 80 countries with common law systems and about 150 with civil law systems. The fundamental difference between the two systems is that case law, which is published in court rulings, is of primary importance in common law countries. On the other hand, codified legislation is predominant in nations with civil law, although these differences are not always as clear-cut as they seem. In fact, a lot of countries integrate aspects of their civil and common law systems.
In this article, we will learn about What is Common law System and Civil law System, the characteristics of both systems, the list of countries that comes under these laws, and the tabular difference between Common law and Civil law.
What is Common Law System?
Common law is the body of law formed by judges and other quasi-judicial tribunals because it is expressed in written decisions. It is often referred to as judicial precedent, judge-made law, or case law. Both statutory laws created by legislators and court-established legal precedents serve as the foundation for the laws that apply in a certain situation. In an adversarial system, the judge resolves disputes between disputing parties in an impartial manner. A jury may find certain facts, but a judge will apply the law. While victims serve as witnesses and may have limited engagement as victims and rights to information, prosecutors and defence lawyers take an active role in the case. Victims, however, are not a party in criminal cases.
Characteristics of Common Law System
A common law system’s characteristics include:
- A written constitution or set of codified laws is not always present.
- Judicial rulings are final and enforceable; rulings of the highest court can often only be reversed by that court or by legislation.
- Vast freedom of contract – few legal provisions are implied in the agreement.
- In general, anything that isn’t specifically forbidden by legislation is allowed.
List of Common Law System Countries 2023
Common law nations are often former protectorates or colonies of Great Britain.
The United States
The “common law” legal system in the United States depends mostly on judicial precedent in official decisions. For the court to decide on a matter before it, court rulings in previous cases are essential, even in situations when laws are in doubt.
England
Judge-made legislation and the topics covered in earlier judgments serve as the foundation for England’s common law legal system. It started during the time of King Henry II (1154–89) when a number of regional customs were replaced by new national laws that were “common to all,” meaning they applied to everyone.
India
The common law system, which was obtained from the British colonial legacy and depends on recorded court precedents, is the foundation of the Indian legal system. India’s judicial system is composed of the High Court of India, district, municipal, and village subordinate courts, as well as the Supreme Court of India.
Canada
With the exception of the province of Quebec, Canada is a bijural nation where common and civil law coexist. Common law is applied to all aspects of public law (such as criminal law and administrative law) throughout the nation. All areas of private law, including family and child law, are governed by civil law in Québec.
What is Civil Law System?
Civil law is a legal system that originated in Italy and France and has since spread around the world. The fundamental ideas of civil law are codified into a referable system that functions as the main source of law, and the system is conceptualized within the contexts of French and Roman civil law. A written Constitution stating fundamental rights and obligations is typically based on particular codes such as the civil code, codes governing corporations, administrative law, and tax law. Different constitutional, administrative, and civil court systems typically make decisions about the legality of laws and administrative actions as well as the interpretation of the underlying codes. There is little room for negotiation, many terms are legally incorporated into contracts, and parties cannot avoid certain duties.
Characteristics of Civil Law System
A civil law system’s characteristics include:
- A written constitution is founded on particular codes, such as the civil code and codes related to corporate, administrative, tax, and constitutional law.
- Only acts of legislation are regarded as universally binding.
- Court decisions are significantly influenced by the publications of legal experts in certain civil law systems, such as Germany.
- Courts unique to the underlying codes: as a result, there are typically different systems of administrative, civil, and constitutional courts that interpret and provide opinions on the compatibility of laws and administrative actions with those particular codes.
- Less freedom to negotiate: many clauses are legally assumed in contracts, and parties are not allowed to remove specific clauses.
List of Civil Law System Countries 2023
Most countries in East Asia and Central and Eastern Europe have adopted a civil law system:
China
The legal system of the People’s Republic of China (PRC) is heavily reliant on Chinese civil law. The basis for many particular enactments and economic rules in the economic sectors is civil law, a fundamental legal structure that regulates the property and interpersonal relationships of equal persons.
Japan
One way to describe Japan’s legal system is as a codified civil law system. The Constitution and the five main codes—civil, criminal, criminal procedure, and commercial—form the legislative core of the system.
Germany
The formulated and codified federal Constitution of Germany is referred to as the Basic Law. Each of the federal states has a written and codified constitution of its own.
France
Because of its civil legal system, which is based on multiple codes, legislation in France replaces case law. Since each case is decided individually depending on how it relates to the codified law and how the judge chose to interpret that legislation, the idea of stare decisis does not apply in civil law systems.
Difference Between Common Law and Civil Law
The following table lists the primary differences between Common Law and Civil Law:
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Common law originated in England in the Middle Ages and has since extended to many former British Empire nations, such as the US, Canada, Australia, and India.
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Civil law originated in Continental Europe, specifically inside the boundaries of the Roman Empire.
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The main sources of law in common law nations are laws and court rulings from previous cases, sometimes referred to as precedent or case law.
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The main sources of law in nations with a civil law system are legislatively enacted codes and legislation as well as the works of legal academics.
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Judges actively participate in interpreting and applying the law to the particular facts of a case in common law nations. Their decision-making process is based on precedent and earlier rulings.
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Judges are supposed to strictly apply the law as it is established in codes and statutes, which means they have a more passive role in civil law nations.
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An adversarial judicial system, in which two opposing parties submit their cases and supporting documentation to a judge or jury, is the foundation of common law countries.
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The judicial system in civil law nations is frequently investigative, meaning that judges are more actively involved in questioning witnesses and acquiring evidence.
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Common law nations frequently use English as the basis for their legal terminology, which includes words like plaintiff, defendant, precedent, tort, contract, and negligence.
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Civil law nations frequently use Latin-derived legal vocabulary, which includes phrases like in rem, in personam, bona fide, and res judicata.
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Common law mostly depends on judicial rulings and case law, which are not necessarily codified.
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Civil law nations place a high value on written law, statutes, and codes since their legal systems are highly codified.
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Lawyers are important members of the legal system in common law nations, representing clients and making arguments in court.
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Lawyers are more frequently viewed as consultants and legal advisers in civil law nations, offering guidance to clients outside of the courtroom.
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Background of the Common Law and Civil Law Systems
The common law system was founded on written orders known as “writs,” which were issued by the English Crown when justice needed to be done. Since writs were insufficient to handle every circumstance, equity courts were eventually established in order to hear complaints and provide appropriate remedies. These courts were founded on equitable concepts that were drawn from a variety of authoritative sources, including Roman law and “natural” law. Courts were able to locate prior opinions and apply them to ongoing cases as the rulings were being collected and released. In this context, common law originated.
Civil law has been related back to a set of regulations drafted by the Roman Emperor Justinian in 600 C.E. in certain European countries. These rules served as the foundation for authoritative legal codes that developed over many centuries in several countries, giving rise to similar legal systems each with its own particular body of laws.
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Summary – Common Law vs Civil Law
Common Law and Civil Law are two predominant legal systems globally, with approximately 80 countries following common law and 150 adhering to civil law. The key distinction lies in the sources of law, where common law relies on case law and precedents, while civil law emphasizes codified legislation. Common law nations, such as the United States and England, prioritize judicial decisions and legal precedents, fostering an adversarial system. In contrast, civil law systems, found in countries like China, Japan, and Germany, are rooted in comprehensive legal codes, limiting the role of judges to strict application rather than interpretation. Despite these differences, many jurisdictions integrate elements of both systems, blurring the lines between common law and civil law practices.
FAQs on Difference Between Common Law and Civil Law
1. What is difference between Common law and Civil law?
The main function of the courts in the civil law system is to resolve particular situations by applying and interpreting the law. Under the common law system, the courts have the authority to decide cases involving particular parties as well as to offer recommendations on future resolutions of cases with comparable facts.
2. Is India civil or common law?
India’s legal system is derived from three main sources: civil (or “romanist”) law, religious law, and common law. Legislators in India have deviated from English law in accordance with the country’s particular circumstances and equity considerations.
3. What do you mean by Common Law?
An unwritten body of legislation derived from court decisions is known as common law. In exceptional situations where the outcome cannot be determined by existing laws or written legal regulations, common law serves as the basis for decision-making.
4. What are Common Laws in India?
It is sometimes referred to as case law, judge-made law, or judicial precedent. It is a corpus of law composed of rulings made by courts and other like authorities.
5. What is Civil Law in India?
A collection of guidelines, protocols, rulings, and court cases known as civil law aid in the settlement of a wide range of non-criminal conflicts.
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