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Common Law and Civil Law Legal Systems Compared

The document compares and contrasts common law and civil law legal systems. It discusses their origins, development, spread, language usage, role of judges and precedents, use of juries, and structure. Common law began in England and was developed through judicial decisions, while civil law originated from Roman law and is primarily codified through legislation. Civil law places more emphasis on coherent structure compared to the incremental development of common law.

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58 views2 pages

Common Law and Civil Law Legal Systems Compared

The document compares and contrasts common law and civil law legal systems. It discusses their origins, development, spread, language usage, role of judges and precedents, use of juries, and structure. Common law began in England and was developed through judicial decisions, while civil law originated from Roman law and is primarily codified through legislation. Civil law places more emphasis on coherent structure compared to the incremental development of common law.

Uploaded by

Tame Avaa
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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IF your Question is common law definition and legal system 😊

COMMON LAW DEFENATION AND CIVIL LAW LEGAL SYSTEMS


[Taken from Comparative Legal Systems- MSN Encarta, 12/5/2006] 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 subdivide
them further into the following features
1) Beginnings The common law was conceived in 1066 and born of union between older Saxon law and
the custom of the Norman conquerors. The civil law was older than the common law is now.
2) 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 practicing lawyers but public-
minded citizens. It was they who strive 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 AD 200.
3) Spread The common law spread only by conquest and colonization: no one ever accepted it freely.
The Roman part of the civil law, preserved in the collection of Justinian of AD 533, was rediscovered in
the 11th century, embraced by the university law schools of northern Italy, and spread from them
throughout continental Europe. From there like the common law it went to the New World and the parts
of Africa by colonization. In addition, however, especially in the 19th century, the French and then the
German versions were freely selected as models by countries in the Middle and Far East.
4) Language Although originally written in Latin and spoken in Norman French, the language of the
common law today is virtually exclusively English. In most civil law systems the terminology is likely to
be wholly in the local language. Makers The main creators of the common law are the judiciary: that is to
say the matrix, the basic operation system, is laid down by case law. While deciding cases, judges lay
down the law. 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.
6) Legislation The modern countries of both systems of laws produce large amounts of legislation.
However, 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 case law 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 so laid down in one legislative document, with the aim of
providing a closed, coherent, and consistent set of propositions that, 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.
7) Precedent in civil law legal system, A 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 people (Article 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 representative of the people. Common-
law perceptions are quite different. Historically, 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. However, they
are needed, and so a notion of precedent comes into being. For instance, the English Parliament has never
defined murder, has never laid down that contracts must be kept, or that a person must pay compensation
for damage unlawfully caused to others, since such definitions and rules are necessary, courts and lawyers
can find them only in earlier case law. As it would be absurd and unfair if judges could remake 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. The doctrine of precedent is an operational rule of a
common-law system.
8) Fact: The judges who built up the common law system were few in number, and left the hard work of
fact-finding to laypeople: that is, the jury. Originally made up of neighbors who might be thought to know
the background, and then of disinterested strangers empowered to hear the evidence and decide.
Nowadays only the United States makes much use of the jury for non- criminal matters (as required by
the seventh Amendment).
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 which questions to put to them. Third, the procedure could be more sporadic, spread
over a number of sessions, and reduced to writing. 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 reverse a decision.
9) Structure: One result of the above features is that in common-law countries the legal system is not
organized in a coherent and clear structure. Its development tends to be incremental and pragmatic, and it
is not easy for the civil lawyer to approach. Civil lawyers lay great emphasis on system and structure.
Furthermore, they tend to follow similar patterns in their organization of legal topics, and once these are
understood it is relatively simple to locate the law on any given topic.

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