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COMMON LAW AND CIVIL LAW

The common law system dates back to the Norman Conquest in 1066. The law is
developed through court decisions, rather than through legislative statutes alone.
While legislation exists, it is interpreted by courts. Judges’ decisions as to the meaning
and application of legislation then become the law. Therefore, the common law is
flexible for changing circumstances and cases. The common law system is premised
on a concept called stare decisis. The term originates from the Latin phrase “Stare
decisis et non quieta movere”, which translates as “to stand by decisions and not
disturb the undisturbed”. Decisions in the common law are called ‘precedents’, and
they guide judges in making future decisions in similar cases. Thus, courts are obliged
to follow precedents and not disturb established law. If, however, a later dispute is
factually distinct from the previous case, judges can distinguish between the cases
and create a new precedent based on the new facts. The concept of stare decisis is
premised on the hierarchy of courts. The decisions of higher courts are binding on all
lower court judges. For example, decisions by the Supreme Court of Canada are
binding on all judges in all lower courts in Canada. Decisions of Provincial Courts of
Appeal bind all the judges in that province. Superior Court decisions bind lower trial
court judges. Judges are not bound by decisions of other judges of their own court.

Those decisions are persuasive but not binding. When judges create new law by
interpreting legislation, they can override the literal reading of the legislation itself.
However, the common law is still subject to the Constitution Act. Judicial decisions
must be consistent with the Constitution and the Canadian Charter of Rights and
Freedoms. Often, the legislature will respond to judicial decisions by amending or
enacting new law in accordance with the court decisions or in order to ‘fill gaps’ in
judge-made law.

Common law is a peculiarly English development. Before the Norman conquest,

different rules and customs applied in different regions of the country. But after 1066
monarchs began to unite both the country and its laws using the king’s court. Justices
created a common law by drawing on customs across the country and rulings by
monarchs. These rules developed organically and were rarely written down. By
contrast, European rulers drew on Roman law, and in particular a compilation of rules
issued by the emperor Justinian in the 6th century that was rediscovered in 11th-
century Italy. With the Enlightenment of the 18th century, rulers in various continental
countries sought to produce comprehensive legal codes.

Today the difference between common and civil legal traditions lies in the main source
of law. Although common-law systems make extensive use of statutes, judicial cases
are regarded as the most important source of law, which gives judges an active role
in developing rules. For example, the elements needed to prove the crime of murder
are contained in case law rather than defined by statute. To ensure consistency, courts
abide by precedents set by higher courts examining the same issue. In civil-law
systems, by contrast, codes and statutes are designed to cover all eventualities and
judges have a more limited role of applying the law to the case in hand. Past judgments
are no more than loose guides. When it comes to court cases, judges in civil-law
systems tend towards being investigators, while their peers in common-law systems
act as arbiters between parties that present their arguments.
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Civil-law systems are more widespread than common-law systems: the CIA World
Factbook puts the numbers at 150 and 80 countries respectively. Common-law
systems are found only in countries that are former English colonies or have been
influenced by the Anglo-Saxon tradition, such as Australia, India, Canada and the
United States. Legal minds in civil-law jurisdictions like to think that their system is
more stable and fairer than common-law systems, because laws are stated explicitly
and are easier to discern. But English lawyers take pride in the flexibility of their
system, because it can quickly adapt to circumstance without the need for Parliament
to enact legislation. In reality, many systems are now a mixture of the two traditions,
giving them the best of both legal worlds.

Government legislation is the primary source of law in a civil law system.

What is the Civil Law?

Civil law systems, also called continental or Romano-Germanic legal systems, are found on all
continents and cover about 60% of the world. They are based on concepts, categories, and rules derived
from Roman law, with some influence of canon law, sometimes largely supplemented or modified by
local custom or culture. The civil law tradition, though secularized over the centuries and placing more
focus on individual freedom, promotes cooperation between human beings.

In their technical, narrow sense, the words civil law describe the law that pertains to persons, things,
and relationships that develop among them, excluding not only criminal law but also commercial law,
labor law, etc. Codification took place in most civil law countries, with the French Code civil and the
German BGB being the most influential civil codes.

What the civil law is:

 A comprehensive system of rules and principles usually arranged in codes and easily
accessible to citizens and jurists.

 A well organized system that favors cooperation, order, and predictability, based on a logical
and dynamic taxonomy developed from Roman law and reflected in the structure of the codes.

 An adaptable system, with civil codes avoiding excessive detail and containing general
clauses that permit adaptation to change.

 A primarily legislative system, yet leaving room for the judiciary to adjust rules to social
change and new needs, by way of interpretation and creative jurisprudence.

Some salient features of the civil law:

 Clear expression of rights and duties, so that remedies are self-evident.

 Simplicity and accessibility to the citizen, at least in those jurisdictionswhere it is codified.

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 Advance disclosure of rules, silence in the code to be filled based on equity, general principles,
and the spirit of the law.

 Richly developed and to some extent transnational academic doctrine inspiring the legislature
and the judiciary.

Where we find the civil law:

 In Continental Europe, where most jurisdictions have civil codes. In Great Britain, Scotland
has retained an uncodified form of the civil law. Even when they have civil codes, Scandinavian
countries are not regarded as civil law jurisdictions.

 In North America, civil codes are found in Louisiana and Quebec.

 In Central and South America, almost all countries have civil codes.

 In Asia, many countries have received the civil law and have civil codes, such as Indonesia,
Japan, Kyrgyzstan, and Lebanon.

 Countries of Africa that once were colonized by continental European nations have kept many
aspects of the civil law traditions. The Civil Code of Egypt has a significant influence in Africa
and the Middle East, whilst the Roman-Dutch law applied in South Africa was never codified.

 Some remnants of the civil law traditions are to be found on some Pacific islands, especially
in the French territories of New Caledonia or Tahiti.

 In mixed jurisdictions, chiefly found in America, Africa, and Asia, but also in Europe, the
civil law coexists with other legal traditions such as the common law, customary law, or Islamic
law.

Legal systems around the world vary greatly, but they usually follow civil law or common law. In
common law, past legal precedents or judicial rulings are used to decide cases at hand. Under civil law,
codified statutes and ordinances rule the land.

Comparison chart

Civil Law Common Law

Legal system originating in Europe whose most prevalent feature is that its Legal system
core principles are codified into a referable system which serves as the characterized
Legal System
primary source of law. by case law,
which is law
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Civil Law Common Law

developed by
judges
through
decisions of
courts and
similar
tribunals.

Chief investigator; makes rulings, usually non-binding to 3rd parties. Makes

rulings; sets
precedent;
Role of judges
referee
between
lawyers.
Spain, China, Japan, Germany, most African nations, all South American United
nations (except Guyana), most of Europe States,
England,
Countries
Australia,
Canada,
India

Constitution Always Not always

Only used to determine administrative of constitutional court matters Used to rule

Precedent on future or
present cases

Origins
Historians believe that the Romans developed civil law around 600 C.E., when the
emperor Justinian began compiling legal codes. Current civil law codes developed around that
Justinian tradition of codifying laws as opposed to legal rulings.
Common law dates to early English monarchy when courts began collecting and publishing legal
decisions. Later, those published decisions were used as the basis to decide similar cases.

Modern Common and Civil Law Systems

Today the difference between common and civil legal tenets lies in the actual source of law.
Common-law systems make refer extensively to statutes, but judicial cases are considered the most
important source of law, allowing judges to pro-actively contribute to rules. For example, the
elements needed to prove the crime of murder are contained in case law rather than defined by
statute. For consistency, courts abide by precedents set by higher courts examining the same issue.
In civil-law systems on the other hand, codes and statutes are designed to cover all eventualities
and judges have a more limited role of applying the law to the case in hand. Past judgments are no
more than loose guides. When it comes to court cases, judges in civil-law systems are more like
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investigators, while their equivalents in the common-law systems are rather arbiters between
parties presenting arguments.
Below is a discussion on civil vs common law systems:

Countries following Civil or Common Law

The United States, Canada, England, India, and Australia are generally considered common
law countries. Because they were all once subjects or colonies of Great Britain, they have often
retained the tradition of common law. The state of Louisiana in the United States uses civil law
because it was once a colony of France.
Civil law countries include all of South America (except Guyana), almost all of Europe (including
Germany, France, and Spain), China, and Japan.
South Africa, Namibia, Botswana, and Zimbabwe are bijuridical, i.e., they follow a combination
of both legal systems.

Legal representation
In both civil and common law countries, lawyers and judges play an important role.
However, in civil law countries, the judge is usually the main investigator, and the lawyer's role is
to advise a client on legal proceedings, write legal pleadings, and help provide favorable evidence
to the investigative judge.
In common law, the judge often acts as a referee, as two lawyers argue their side of the case.
Generally, the judge, and sometimes a jury, listen to both sides to come to a conclusion about the
case.

Constitutions
Though not a rule, common law countries may not always follow a constitution or a code of laws.
In civil law, the constitution is generally based on a code of laws, or codes applying to specific
areas, like tax law, corporate law, or administrative law.

Contracts
Freedom of contract is very extensive in common law countries, i.e., very little or no provisions
are implied in contracts by law. Civil law countries on the other hand have a more sophisticated
model for contract with provisions based in the law.

Precedent
The decisions of judges are always binding in common law countries, althought that does not mean
the decision may not be appealed. In the United States, for example, cases may be heard by a
network of federal or state courts, with the federal Supreme Court holding ultimate power.
Generally, the ruling of the last court that a case visits remains the final, binding verdict. That case
may later be used as precedent to argue similar cases in the future.
In civil law countries, only the judicial decisions of administrative and constitutional courts are
binding outside the original case. In essence, the concept of precedent, i.e. past cases can determine
the outcome of future ones, is not used.
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American vs. British Common Law

Because it began as a colony of England, the United States inherited many traditions of British
common law, including habeas corpus and jury trials. After the American Revolutionary War, one
of the first acts of the new government was to adopt existing English common law in full, unless
it contradicted the U.S. Constitution.
However, in 1938, the U.S. Supreme Court ruled that there will be “no general common law.” So,
from that year forward, federal courts deciding issues that originated in states had to look to the
state judicial interpretations of those matters.
The 1938 decision was later amended so that the federal government could develop a common law
based on uniquely federal interests, such as war, foreign policy, taxation, etc.

History
Common law is a peculiar to England in its origin. Until the Norman conquest, there were different
rules for different regions of the country. But as the laws and the country began to unite, a common
law was created based on customs and rulings across the country. These rules developed
organically and were rarely written down.
European rulers on the other hand ruled on Roman law, and a compilation of rules issued by the
emperor Justinian in the 6th century that was rediscovered in 11th-century Italy. With the
Enlightenment of the 18th century, rulers from different continental countries took to
comprehensive legal codes.

Common Law and Civil Law

On looking at the historical development and substantive features of the legal systems of the world we
can see that many of them fall into one of two families. In the whole of human history only two peoples
seem to have founded a secular, comprehensive, enduring, and widespread legal system: the Romans
of the Ancient World and the Anglo-Normans of the Middle Ages. The pedigree of the civil law goes
back to Ancient Rome, although the later customary family law, and the canon law of procedure have
also marked the system. The Common Law world begins in England. Of course within each family
there are major differences between individual members, but each is still quite clearly not a member of
the other family.

The best way to explain the main elements of the Civil and the Common Law families and to compare
and contrast the two is to look at the following features.

Beginnings
The Common Law was conceived in 1066 and born of a union between older Saxon law and the custom
of the Norman conquerors. The Civil Law was older then than the Common Law is now.

Nurture
The Common Law was nurtured in London law courts, by judges and barristers. The older Roman Law
was developed - to an important extent - by jurists, who were not practising lawyers but public-minded
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citizens. It was they who strove to expound, explain and adapt the ancient and sporadic legislation and
the edicts of the officials; the high-point of their contribution occurred in the decades around 200AD.

Spread
The Common Law spread only by conquest and colonization: no one ever accepted it freely (and the
countries of the former Soviet bloc are taking their models from the civil law, not the common law).
The Roman part of the Civil Law, preserved in Justinian's collection of 533AD, was rediscovered in the
11th century, embraced by the University law schools of northern Italy (see also here), and spread from
them throughout continental Europe. From there, and like the common law, it went to the New World
and to parts of Africa by colonization. But, especially in the 19th century, the French and then the
German versions were selected as models by countries in the Middle and Far East.

Language
Although originally written in Latin and spoken in Norman French, the language of the Common Law
today is virtually only English. Wherever some version of the common law is in force, the native or
official language of the country is English. The legal vocabulary, however, is likely to be markedly
technical if not arcane and to contain much dead French and Latin. By contrast, the Civil Law is found
in most languages.

Makers
The main creators of the Common Law are the judiciary: that is to say the matrix, the basic operating
system, is laid down by caselaw. Recruited from the ranks of successful practising lawyers, the judges
speak with individual and distinctive voices: they lay down the law. The great names are well known
in common-law countries, and in the USA and Canada the highest court is an institution of enormous
power and prestige. In civil-law systems, at least until very recently, judges played the comparatively
minor role of settling the dispute in front of them. They did not make the rules of the system, and their
decisions are not cited in later cases. Appointed to the Bench in their middle to late twenties, they are
civil servants who, in principle, rarely sit alone but in groups of three. They are trained to produce just
one decision - that of 'the court' - written in the dry laconic prose of a bureaucrat.

Legislation
Of course the modern countries of both systems produce large amounts of legislation. But that of the
common-law countries tends to be piecemeal. Save for the constitution, and fiscal matters, basic
principles are not enacted (except as codifications of existing caselaw in such statutes as the Partnership
Act). The typical statute merely adjusts some detail of the rules laid down by the courts. In complete
contrast, modern civil law systems tend to think of themselves as 'codified'. The word 'code' in this
context means that a whole area of law is laid down in one legislative document which aims to provide
a closed, coherent and consistent set of propositions which, if used in good faith, can be applied to solve
any dispute in that area. The most obvious example is that of a criminal code. Historically, however,
the most influential models have been the civil codes of France (see also here) (1804) and Germany (see
also here) (1900). These deal with non-criminal private law, that is the rules on persons and family,
property, wills and intestacy, contracts, torts and so on. Such codes also provide the general pattern of
thought in the whole legal culture, acting as a default system for gaps elsewhere (for instance in the
laws regulating employment or the environment). So important are they that a French lawyer will call
the Civil Code 'le droit commun' (the common law) and will aver that French law is codified. It is not:
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administrative law and conflicts law are found in no coherent code; but the assertion illustrates the
impact of the great Civil Code.

Precedent
Where the basic principles are contained in an enacted code, this is the source of the law. Judicial
decisions do not make law because they do not need to. So, for instance, the Austrian Civil Code 1811
- which lays down the basic rules of private law - can sensibly provide: 'Decisions in individual cases
and the opinions handed down by courts in particular lawsuits never have the force of law; they cannot
be extended to other cases or to other persons.' ('2) This approach is fortified by the historical fact that
civil-law judges did not see their job as creating law, the professional fact that they are career civil
servants, and the political fact that it is thought more democratic to entrust lawmaking to the elected
representatives of the people. Common-law perceptions are quite different. Historically, the judges
made the law. Furthermore, to this day the legislator in common law countries does not lay down the
basic rules of the legal system. But they are needed, and so a notion of precedent comes into being. For
instance, the English parliament has never defined murder, never laid down that you must keep your
contracts, or pay compensation for damage unlawfully caused to others. Since such definitions and rules
are necessary, courts and lawyers can find them only in earlier caselaw. And since it would be absurd
and unfair if judges could re-make the basic law of murder or of contract in any case before them, a rule
of 'precedent' binds them to the law as declared by higher courts in their jurisdiction. This means that,
in deciding a legal issue, the common-law judge must come to terms openly and honestly with any rule
laid down by precedent, just as a civil-law court has to face up to the rules laid down by the legislator.
The doctrine of precedent is an operating rule of a common-law system: so the rule itself was never laid
down by a legislator. It is a judicial creation and can be amended or adapted by its makers. So in
England, for instance, the highest court (the House of Lords) held in the 19th century that it was bound
by the law laid down in its own prior decisions. In the 1960s is amended that rule and gave notice that
it was now free, to change its mind. Lower courts, however, are bound by the highest court's rulings on
matters of law.

Fact
Legal disputes are as much about fact as about law. The work of the lower courts, in particular, is very
largely taken up with determining issues of fact. The common law and the modern civil law both
developed in territories where such matters were decided by ordeal, oath or battle. On discarding these
methods, the two systems took different paths. The judges who built up the common law system were
few in number, and left the hard work of fact-finding to non-lawyers: the jury, originally of neighbours
who might be thought to know the background, and then of disinterested strangers empanelled to hear
the evidence and decide. Nowadays only the USA makes much use of the jury for non-criminal matters
(as required by the VII Amendment), but its ghost rules the procedure of all common-law countries.
The very word 'trial' suggests a single, continuous and relatively short session in which all the evidence
is presented to a jury who knew nothing about it beforehand. Similarly, there is no need for the judge
to be acquainted with the case before the trial begins. The proceedings are oral, since that is the quickest
and most effective way of conveying information to a number of laypersons. And their verdict is
difficult to overturn, since an appellate court has not heard the evidence directly nor seen the witnesses
in person. The civil law systems, by contrast, have always left the task of finding the facts to a
professional judge. This has a number of consequences. First, there were always far more judges in
civil- than in common-law countries. Second, the judge could be given more control from the outset of
the dispute in deciding which witnesses to call and what questions to put to them. Third, the procedure
could be more sporadic, spread over a number of sessions, and reduced to writing: the civil-law word
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often mistranslated as 'trial' is le process, der Prozess - a better rendering is 'the proceedings'. Fourth,
the rules of evidence can be flexible, since a professional judge is presumed capable of accurately
assessing testimony. Finally it is easier for a higher court to correct or revise a decision.

Question is whether a judge who know the issue in hand by himself investigating the matter (civil law),
is better suited to decide the case or a judge of a common law country who knows nothing about the
case in hand, and decides the case after hearing the arguments of the parties?? In which situation the
impartiality lies?

Structure
One result of the above features is that in common-law countries the legal system is not organised in a
coherent and clear structure. Its development tends to be incremental and casuistic, and it is not easy
for the foreign lawyer to approach. Civil lawyers, on the other hand, lay great emphasis on system and
structure. Furthermore, they tend to follow similar patterns in their organisation of legal topics, and
once these are understood it is relatively simple to locate the law on any given topic.

Incidence
Some version of the common-law is found today only in places once occupied by the British, among
them Ireland, the USA, Canada, Australia, New Zealand, India, Pakistan, Kenya, Uganda, Zambia,
Nigeria and Ghana. But (except for the special case of Israel) no country which has the common law
seems able or willing to get rid of it.

So far we have spoken of the Civil Law in general, in comparing it to the Common Law. Within the
former family, however, there are two great sub-branches. For one of them the French approach has
largely been the model, for the other the German. The French have, directly or indirectly, influenced
Belgium, the Netherlands, Mauritius, Quebec, Louisiana, Italy, Egypt, Algeria, Tunisia, Morocco, Sub-
Saharan Africa, Spain, Latin America. The German model was followed later in such countries as Japan,
Greece, Thailand, Taiwan, Portugal, Brazil.

Some systems, while recognisably those of the civil law, have rather gone their own way in the
organisation of their private and commercial law, for instance Austria (1811) and Switzerland (1907,
1911). Finally there has been much rethinking of the heart of private and commercial law in Quebec and
the Netherlands and both have recently adopted an entirely new Civil Code.

Those countries of Eastern Europe which, before they became Soviet satellites, had their own civil-law
systems (such as Poland, Hungary, and of course the German Democratic Republic) have turned again
to their earlier tradition.

Other systems
Outside the two large legal families are a number of systems, some relatively easy for a Western lawyer
to understand, others much more remote.

'Mixed' Systems
In the first group are countries with a 'mixed' system influenced by both civil and common law. The
older uncodified civil law of Holland is the basis of the Roman-Dutch law of South Africa, Zambia,
Namibia, Lesotho, Swaziland, Botswana and, on the other side of the ocean, Sri Lanka; it is marked by
a rich juristic literature stemming from Hugo Grotius (de Groot) in the 17th century. But their long
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contacts with Britain mean that their public law and systems of court procedure owe much to the
common law.

Scotland, Louisiana, Mauritius and Quebec are examples of a private law based on older civil and
customary rules (uncodified in Scotland) struggling to endure in a common-law environment. Israel has
a system all its own, where the older Ottoman and British mandate layers are now overriden by a modern
system. It has no single constitutional document, but much of the modern law combines the broad
legislative simplicity of the great codes of civil law with the careful transparency of the common-law
judgment.

Nordic Europe
The legal systems of Denmark, Finland, Iceland, Norway and Sweden do not fit neatly into the civil-
law pattern. Their original Germanic public and private law was collected in legislative form long before
the rationalising fashion of the French model: in Denmark (1683), Norway (1683), and Sweden-Finland
(1734). Marked by relatively small populations with a high standard of living, economic efficiency and
the ideals of the modern welfare state, they have adopted much uniform legislation especially in the
fields of commerce and family law.

Socialist law
Until recently, the USSR and its satellites proclaimed that their socialism was producing an entirely
new form of law, not to be judged by or even compared with the older systems. This view was said to
be the scientific conclusion of a Marxist analysis. Even in those days, however, the systems' documents
looked, on the surface, familiar: constitutions and civil codes many of whose rules bore - at least on
paper - a strong resemblance to the traditional provisions.

The USSR's peaceful disintegration into 15 sovereign states has provoked much activity in fashioning
new structures. Most of the states by now have a new democratic constitution and are drafting the rest
of the legal system. Among the last acts of the old USSR was the enactment of a comprehensive
framework of Basic Principles for private law. It was used in Russia as an interim instrument until the
Civil Code of November 1994. In time the statute book will probably look much like those of the civil-
law German-speaking countries. More problematic is the personnel to run the system, in the shape of
lawyers and, above all, of judges who are well-trained, wise, and honest.

From its inception in 1949, the People's Republic of China's declared aim was to attain socialism. It
abrogated all earlier legislation and during the next decade much of the formal law appeared inspired
by Soviet models. But the 'Great Leap Forward' of 1958 emphasised ideological leadership, law was
denigrated and degraded during the Cultural Revolution (1966-76), and it was not until the 1980s that
something resembling a recognisable legal system began to appear. Under the 1982 Constitution (see
also here), China - despite its size - is not a federation. The People's Congress is the named legislator
and the 'executive' is the State Council, although much power remains with the Chinese Communist
Party. The pre-Cultural Revolution legal structure has been partly resurrected, and a legal framework
of codes enacted. The Basic Principles of Civil Law contain many provisions that would be familiar to
Western jurists. The actual functioning of the system, however, is affected by the persistent attitude that
makes law subordinate to the decisions of central and local political authorities.

Islam
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The number of Muslim countries is growing, but the main common feature is the Islamic religion which
aims to cover all areas of life, not merely the spiritual. It thus has the features of a religious system of
law, as described above. In its strongest formulation, some Islamic scholars state that law cannot exist
outside religion and therefore the state has no power to legislate. But in practice the religion is found in
countries with very different histories, whose formal legal systems vary from the absolute sovereignty
of some Gulf states through the French and Swiss-influenced codes of Egypt and Turkey, the common-
law patterns of Pakistan and India, the Soviet structures of the central Asian republics, to the
revolutionary councils and tribunals of Iran.

Hindu law
Unrivalled in age and continuity, the Hindu law found
in India, Myanmar, Nepal, Pakistan, Malaysia and parts of East Africa is contained in a literature which
is vast, complex and seemingly impossible to summarise. Its laws and customs are derived from sages
of the past who were themselves taught by a creator, it preaches the birth, death and rebirth of living
things, and its precepts cover many more activities than does any secular legal system. In the countries
mentioned, however, it governs only the personal and family relations of those involved and its family
law has been codified and much amended, especially in India. Nonetheless it can affect the lives of
some 450 million people.

Customary laws
In many parts of the world unwritten local or tribal custom sets the standard of behaviour and provides
for conciliation and dispute settlement. Most of the African countries, for instance, have a formal
constitutional and commercial law inspired by French, Belgian or British models but remit the relations
between private individuals to the appropriate customary framework.