Main Difference – Common Law vs Civil Law

When one looks into the legal systems prevalent in the world, one may come across many legal systems, practiced in various countries, which bear their roots from the legal systems practiced in the European continent. Though all legal systems have the same purpose of regulating and harmonizing the human action within their respective societies, these legal systems are all driven towards certain fundamental likenesses and differences in their lawful frameworks. Most countries today follow one of the two most prominent legal systems: common law or civil law.  The common law system developed in England amid the middle ages and was applied to the former British colonies across the world. And the civil law system created in Europe was applied in the colonies of European imperial powers such as Spain and Portugal.

There are also some countries in which the civil law and the common law have been working together in what might be known as a “mixed jurisdiction,” like in Sri Lanka, Quebec, Scotland and South Africa. This article tries to explain these two systems and to distinguish the fundamental difference between common law and civil law based on their methods of thought and attitudes towards the law as a legal system.

The source of law remains the main source of difference between common law and civil law. Even though common law frameworks make reference to statute law, case law or judicial precedents remain to be the most important source of law, which gives judges a dynamic part in creating rules. In civil law system, extensive reference is made to codes and statutes that are designed to cover all eventualities, and the judges tend to have a much-limited role to play in terms of applying the codified law to particular situations. Thus precedents of case laws would only be used as mere guidelines. Accordingly, when cases are heard under the civil law legal systems, the judges act simply as investigators, while in common-law systems, the judges seem to hold a more prominent role by acting as arbitrators between the two conflicting parties. 

What is Common Law

Common law is largely uncodified. This implies that there is no complete compilation of legal principles and statutes. Thus a common law system is less prescriptive than a civil law system. While common law relies on few statutes, which are a result of the decisions of the legislative authority, it is extensively based on precedents or the judicial decisions made in comparable cases – generally the decisions of higher courts, which entrust the judges of the common law system with enormous role in shaping the law. For instance, the elements expected to demonstrate the crime of homicide are contained in the case law, as opposed to the law characterized by statute. To ensure uniformity, courts follow the precedents set by higher courts in cases dealing with similar matters.

These precedents are recorded and are documented as case laws through yearbooks, and legal reports. Common law functions as an adversarial system where the judge acts as a moderator between the two conflicting parties.

Common law systems can be seen in the previous English colonies such as Australia, India, Sri Lanka, Canada and the United States. Common law lawyers claim that their system is more flexible since it can adjust to circumstances without any legislative interference.

What is Civil Law

The civil law is codified and has its origin in the Roman Law. Countries with civil law frameworks have a wide-ranging and a constantly updated legal principles that encompass all matters fit for being brought before a court – the relevant procedures, and the fitting punishment for every offense. Such codes recognize distinctive classes of law: substantive law builds up which acts are liable to criminal or civil prosecution; the procedural law lays down the rules for determining if a specific activity constitutes a criminal act, while the penal code specifies the punishments and penalties for certain acts. In a civil law system, the judge’s part is to build up the facts of the case and to apply the statute law, thus making legislative enactments binding. Although a judge brings the formal charges, investigates the matter, and provided the verdict on the case, he or she functions within a framework of codified and structured legal rules and principles.  Thus it could be stated that the judge’s role in shaping the law choice is subsequently less significant in the civil law systems, compared to the legislators and the legal jurists who have the authority to draft and interpret the codes.

Countries which were former French, Dutch, German, Spanish or Portuguese colonies, including much of Central and South America and most of the Central and Eastern European and East Asian countries also follow a civil law structure. A civil law framework is by and large more prescriptive than a common law framework.

Legal personalities in civil-law jurisdictions believe that their system is more steady and reasonable than common-law systems since the laws are expressed explicitly and are easier to determine in civil jurisdictions.

Difference Between Common Law and Civil Law

Codification

Common Law: Common law is not codified.

Civil Law: Civil law is a codified set of laws.

Judicial Decisions

Common Law: The judicial precedents are binding.

Civil Law: Judicial precedents are not considered to be binding.

Role of Judges

Common Law: The judges make rulings, set precedent and moderate between the conflicting parties.

Civil Law: The judge’s role is to establish the facts of the case and to apply the provisions of the applicable code.

Main Sources of law

Common Law: The main source is judicial precedents or case law.

Civil Law: Statutes and other subsidiary legislations are the main sources.

Court Practice

Common Law: The court practice is an adversarial system.

Civil Law: The court practice is an inquisitorial system.

Reference: 

Key Features of Common Law or Civil Law Systems. (n.d.). Retrieved August 09, 2016, from here

What is the difference between common and civil law? (2013). Retrieved August 09, 2016, from here

The Common Law and Civil Law Traditions. (n.d.). Retrieved August 09, 2016, from here   Image Courtesy: “Statua Iustitiae” By Deval Kulshrestha – File:1660 blk 19329 zoom.png (CC BY-SA 4.0) via Commons Wikimedia  “Law3” By Rifqi Jamil – Own work (CC BY-SA 3.0) via Commons Wikimedia

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