common law vs civil law know the key differences
Common Law Vs. Civil Law - Know the Key Differences
Common law and civil law are two of the most important legal systems in the world, which were prevalent in the Imperial colonies and the colonies of other European powers, respectively. The following Buzzle article will explain the key differences between the two.
Quick Fact
The history to the common law system can be traced back to the British monarchy, in the year 1066, after the Norman Conquest. The civil law system, on the other hand, is said to have been derived from Ancient Roman laws, particularly following the rules laid down by the Roman Emperor Justinian, around the 6th century AD.Common Law
- It is a component of the English common law, and was developed during the Middle Ages.
- It was employed in all British colonies and dominions that existed across the globe.
- This system is based on the principle of following the decisions of the court or a similar body instead of statutes, i.e., laws passed by any legislative body.
- It works like a regular courtroom scene, i.e., there are two parties opposite each other, a jury panel, and a judge who hears both of them out. He gives his decision after consulting the jury members.
- A jury is a collection of ordinary people without formal law training, who listen to and analyze the facts of the case. The judge consults them and gives his decision in favor of the party that has its facts right.
- The decision of the judge is considered final and powerful.
Civil Law
- It is a component of the European law, and was developed around the same time as its counterpart.
- It was applied primarily in the colonies established by European colonial powers, like Portugal, Spain, etc.
- This system is heavily based on the concept of following judicial statutes.
- Even in this system, the judge brings the charges; however, he works by following a set of established rules within a framework.
- This framework is designed by a set of legal experts, government legislation are based on these established rules.
- Thus, in this system, the role of the judge is to hear out the case facts and read the sentence based upon the written set of laws.
Factors of Differentiation
| Common Law | Civil Law |
| Historical Development | |
| It developed from the British law during the Middle Ages, after the Norman Conquest of 1066. A system of writs (royal orders) came into picture, which involved the Medieval kings providing suitable remedies for the wrongs by means of direct appeal. | It is said to have been developed in Rome, and was applied in most European colonies. The system involved adhering to a set of principles that were laid down by expert jurists. Legal codes, like Code of Joseph II (Austria, 1786), Civil Code (France, 1804), etc., were shaped and followed. |
| Base of the System | |
| It is not codified, i.e., it does not follow any compiled codes or statutes. | It is codified, i.e., it follows a set of established laws and codes. |
| Written Framework | |
| Since the system is not codified, it does not always follow a written, established framework of regulations. | It follows a written constitution based on certain written codes. |
| Freedom of Contract | |
| It has a lot of freedom of contract. This is because, vital provisions can be introduced whenever necessary. Of course, these provisions need to abide by certain rules. | Freedom of contract is considerably lesser. Since the system follows an already established set of laws, there is a restriction on the parties on implementing newer provisions. |
| Type of System | |
| A prescriptive system is subject to the legal enforcement of certain rules. This system is thus, not very prescriptive, and so, the government does introduce certain legislation for the benefit of its citizens. | It is certainly more prescriptive due to the already established provisions in the contract of law. However, when it comes to approving certain projects or introducing restrictions, the government does so, while adhering to the established laws. |
| Expert Influence | |
| Mostly, there is no influence of experts under this system. | In some of these systems, there is significant influence of legal experts. |
| Judicial Decisions | |
| The judicial decisions are binding in this system. | The judicial decisions are mostly not binding in these systems. |
| Applicability to PPP Projects | |
| In such systems, public-private partnership issues are dealt by private courts, which are empowered by a contract. | In such systems, PPP issues are handles by administrative courts, by means of the administrative laws. |
| Countries that Follow | |
| It is followed by nations, like Scotland, Canada, United States of America, etc. | It is followed by nations, like France, Brazil, Denmark, etc. |
Points to Consider
- The legal systems described above have their own legal customs and approaches.
- The common law is more suited for decisions regarding social changes and domestic situations. Also, it gives more of a chance for the judges to revert to similar cases in the past, make references and analogies, and then take a decision.
- Civil law, on the other hand, is better suited for political situations where there is a restriction on the judges to impose judicial discretion, courtesy of the codified body of written principles.
- The former has flexibility and predictability, which contributes towards a stable law environment. But, it also overemphasizes on the power of the judges to impose discretion, although it is supposed to conform to the requirements of the constitution.
- The latter, on the other hand, being highly influenced by state constitutions and codes, tends to sub-divide into a number of categories, like procedural, penal, administrative, substantive law, etc. This can be highly efficient and inefficient, depending on the case at hand. However, there is no doubt regarding the fact that, the flexibility factors are considerably lessened.