Civil Law and Common Law

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
investigators, while their equivalents in the common-law systems are rather arbiters between parties
presenting arguments.

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.

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

Spain, China, Japan, Germany, most African nations, all South American nations (except Guyana),
most of Europe

Common law Legal system characterized by case law, which is law developed by judges through
decisions of courts and similar tribunals. United States, England, Australia, Canada, India

Role of Judges:

In civil law, Chief investigator; makes rulings, usually non-binding to 3rd parties. In a civil law system,
the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code.
Though the judge often brings the formal charge.

In common law Makes rulings; sets precedent; referee between lawyers.Judges decide matters of law
and, where a jury is absent, they also find facts. Most judges rarely inquire extensively into matters
before them, instead relying on arguments presented by the part

Role of jury In cases of civil law, the opinion of the jury may not have to be unanimous. Laws vary
by state and country. Juries are present almost exclusively in criminal cases; virtually never involved
in civil actions. Judges ensure law prevails over passion.
 In case of common law, Juries are comprised only of laypersons — never judges. In the U.S., juries
are employed in both civil and criminal cases. Their function is to weigh evidence presented to them,
and to find the facts and apply the law.

Histor The civil law tradition developed in continental Europe at the same time and was applied in the
y colonies of European imperial powers such as Spain and Portugal.

Evolution Both systems have similar sources of law- both have statutes and
both have case law, they approach regulation and resolve issues in
different ways, from different perspectives

Common law systems have evolved primarily in England and its former colonies, including all but
one US jurisdiction and all but one Canadian jurisdiction. For the most part, the English-speaking
world operates under common law.

Sources of Civil 1. Constitution 2. Legislation – statutes and subsidiary legislation 3. Custom 4.

Law International Law 5. [Nota bene: It may be argued that judicial precedents and
conventions also function within Continental systems, but they are not generally
recognised.

Sources of Common Law: 1. Constitution (not in the UK) 2. Legislation – Statutes and subsidiary
legislation 3. Judicial precedent – common law and equity 4. Custom 5. Convention 6. International
Law

Type of argument and role of lawyers

In civil law: Inquisitorial. Judges, not lawyers, ask questions and demand evidence. Lawyers present
arguments based on the evidence the court finds.

In common law: Adversarial. Lawyers ask questions of witnesses, demand production of evidence,
and present cases based on the evidence they have gathered.

Evidence Evidence demands are within the sovereign inquisitorial function of the court — not within
Taking in Civil the lawyers’ role. As such, “discovery” by foreign attorneys is dimly viewed, and can even
lead to criminal sanctions where the court’s role is usurp
Law

Evidence Taking in Common law: Widely understood to be a necessary part of the litigants’ effective
pursuit or defense of a claim. Litigants are given wide latitude in US jurisdictions, but more limited
outside the US. In any event, the litigants and their lawyers undertake to a
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 bijuridicial 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.

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.

Reference: https://www.diffen.com/