Sidebar 4
Common Law v. Civil Law
by Peter Bower and Daisy de Wolff
by Peter Bower and Daisy de Wolff
Introduction:
Common law and civil law are the two predominant, non-theological legal systems in the world today. In common law countries, law is established and refined by judicial opinions. Common law countries have statutory laws enacted by legislatures, as well as judge-made laws made by courts. In addition, courts interpret the meaning of statutes. Common law officially recognizes the precedential value of earlier decisions made by the same court or higher courts in the same jurisdiction with respect to both judge-made laws and statutory interpretations. In contrast, civil law countries base their legal system on codified statutes usually made by a legislative assembly. In a civil law system, statutes, which are updated on a regular basis, are comprehensive, specifying all procedural, evidentiary, and substantive law as well as applicable remedies for breaches and violations. Judges in civil law systems serve a more limited role in lawmaking than they do in common law legal systems and do not recognize the precedential value of earlier decisions from their own court or even higher courts in the same jurisdiction.
Civil law is the system of law governing most of continental Europe, South America, Asia, and Africa. England and its former colonies, including the United States, are common law jurisdictions. Louisiana and Quebec, two former French colonies located within common law countries, retain vestiges of their civil law heritage.
Common law and civil law are the two predominant, non-theological legal systems in the world today. In common law countries, law is established and refined by judicial opinions. Common law countries have statutory laws enacted by legislatures, as well as judge-made laws made by courts. In addition, courts interpret the meaning of statutes. Common law officially recognizes the precedential value of earlier decisions made by the same court or higher courts in the same jurisdiction with respect to both judge-made laws and statutory interpretations. In contrast, civil law countries base their legal system on codified statutes usually made by a legislative assembly. In a civil law system, statutes, which are updated on a regular basis, are comprehensive, specifying all procedural, evidentiary, and substantive law as well as applicable remedies for breaches and violations. Judges in civil law systems serve a more limited role in lawmaking than they do in common law legal systems and do not recognize the precedential value of earlier decisions from their own court or even higher courts in the same jurisdiction.
Civil law is the system of law governing most of continental Europe, South America, Asia, and Africa. England and its former colonies, including the United States, are common law jurisdictions. Louisiana and Quebec, two former French colonies located within common law countries, retain vestiges of their civil law heritage.
Map showing the predominant legal systems.
The History of Civil Law Legal Systems:
Civil law systems have been evolving over the course of the past 1,500 years. A combination of localized feudal law and canon law prevailed throughout Europe during the Middle Ages. Feudal law, which derived from Germanic legal norms, changed over time, adapting to the growth of cities, the expansion of trade, and the refinement of culture throughout Medieval Europe. During the eleventh century, with the expansion of the Holy Roman Empire, legal scholars in Bologna resurrected the ancient Roman corpus juris civlis. The corpus juris civilis, a broad compilation of Roman imperial laws, was promulgated by Emperor Justinian I in the mid-sixth century C.E. and is commonly referred to as the Justinian Code. The Holy Roman Emperors believed that adopting the Justinian Code reinforced their continuity of the Roman Empire and thereby enhanced their legitimacy. Students from all over Europe traveled to Bologna to study the Justinian Code. Thereafter, universities throughout continental Europe also began teaching Roman imperial law.
Civil law systems have been evolving over the course of the past 1,500 years. A combination of localized feudal law and canon law prevailed throughout Europe during the Middle Ages. Feudal law, which derived from Germanic legal norms, changed over time, adapting to the growth of cities, the expansion of trade, and the refinement of culture throughout Medieval Europe. During the eleventh century, with the expansion of the Holy Roman Empire, legal scholars in Bologna resurrected the ancient Roman corpus juris civlis. The corpus juris civilis, a broad compilation of Roman imperial laws, was promulgated by Emperor Justinian I in the mid-sixth century C.E. and is commonly referred to as the Justinian Code. The Holy Roman Emperors believed that adopting the Justinian Code reinforced their continuity of the Roman Empire and thereby enhanced their legitimacy. Students from all over Europe traveled to Bologna to study the Justinian Code. Thereafter, universities throughout continental Europe also began teaching Roman imperial law.
Emperor Justinian I (482-565) was the emperor of Byzantium from 527 to 565 C.E.
The ancient Roman legal procedures were well-received by jurists who preferred them to the feudal and canonical legal procedures involving trial by combat or ordeal. Ancient Roman law, however, never completely replaced local legal traditions or canon law. Ancient Roman law influenced the laws of torts and contracts, while canon law continued to govern matters relating to marriage. Property, succession, and inheritance issues remained subject to regional, feudal legal customs.
Fifteenth century painting depicting a trial by combat in France.
In 1687, Denmark became the first European country to codify its laws. Sweden, France, Austria, Poland, the Netherlands, Italy, Romania, Portugal, Spain, Germany, and Switzerland followed suit and then imported their legal system to their respective colonies. The German legal system became the basis for Japanese law and Chinese law. Taiwan and Korea’s legal systems are based on the German-influenced laws of Japan.
In France, after the French Revolution abolished all vestiges of feudalism and, with it, all existing feudal laws, France was left without a workable legal system. In 1804, Napoleon I enacted the Napoleonic Code (Code Civile des Français), a comprehensive and comprehensible statutory scheme which drew influence from the Justinian Code. The Napoleonic Code was the first modern legal code to be adopted throughout continental Europe. It is still in place in part or in full in over fifteen countries in Europe today.
In France, after the French Revolution abolished all vestiges of feudalism and, with it, all existing feudal laws, France was left without a workable legal system. In 1804, Napoleon I enacted the Napoleonic Code (Code Civile des Français), a comprehensive and comprehensible statutory scheme which drew influence from the Justinian Code. The Napoleonic Code was the first modern legal code to be adopted throughout continental Europe. It is still in place in part or in full in over fifteen countries in Europe today.
The Napoleonic Code as published in 1804.
The History of Common Law Legal Systems:
Prior to the Norman conquest of England in 1066, justice in England was dispensed by local secular and ecclesiastical officials according to provincial customs which varied greatly by locale. Henry II, who reigned from 1133 to 1189, sought to create a unified set of laws “common” to his entire kingdom. He did this by creating a royal court to serve all of England. His judges travelled “on circuit” throughout the country hearing and deciding cases. The king’s judges maintained records of the cases on which they ruled. They used their decisions as well as the decisions of their fellow judges as the bases for decision-making in subsequent similar cases, thereby establishing the principle of stare decisis.
During the thirteenth century, additional courts of law and equity were established with jurisdiction to hear specific types of cases and statutory laws were enacted to supplement, but not to supplant, judge-made case law. One such statute, dating to the reign of Edward I, made admission to practice as a barrister before courts conditional on the acquisition of legal knowledge. Law, thus, became a profession and law schools were founded throughout England to train lawyers.
Sir William Blackstone, who became a member of the bar in 1746, was a professor of law at All Souls College at the University of Oxford. Blackstone published Commentaries on the Laws of England in the 1760s, which focused on property law; civil liability, courts, and procedure; criminal law; and family and public law. Blackstone’s Commentaries were the primary source of information about English common law in the English colonies of the New World and were instrumental in the United States’ adoption of the English common law tradition.
Prior to the Norman conquest of England in 1066, justice in England was dispensed by local secular and ecclesiastical officials according to provincial customs which varied greatly by locale. Henry II, who reigned from 1133 to 1189, sought to create a unified set of laws “common” to his entire kingdom. He did this by creating a royal court to serve all of England. His judges travelled “on circuit” throughout the country hearing and deciding cases. The king’s judges maintained records of the cases on which they ruled. They used their decisions as well as the decisions of their fellow judges as the bases for decision-making in subsequent similar cases, thereby establishing the principle of stare decisis.
During the thirteenth century, additional courts of law and equity were established with jurisdiction to hear specific types of cases and statutory laws were enacted to supplement, but not to supplant, judge-made case law. One such statute, dating to the reign of Edward I, made admission to practice as a barrister before courts conditional on the acquisition of legal knowledge. Law, thus, became a profession and law schools were founded throughout England to train lawyers.
Sir William Blackstone, who became a member of the bar in 1746, was a professor of law at All Souls College at the University of Oxford. Blackstone published Commentaries on the Laws of England in the 1760s, which focused on property law; civil liability, courts, and procedure; criminal law; and family and public law. Blackstone’s Commentaries were the primary source of information about English common law in the English colonies of the New World and were instrumental in the United States’ adoption of the English common law tradition.
First edition of William Blackstone’s Commentaries on the Laws of England.
The Roles of Lawyers and Judges:
Lawyers and judges serve different roles in common and civil law countries. In common law jurisdictions, trials are adversarial and lawyers advocate on behalf of their clients during all phases of civil and criminal proceedings. Judges preside over trials, make rulings on procedural and evidentiary motions, and, in some situations, also take the place of a jury and act as the trier of fact. The trier-of-fact determines the facts of a case at the conclusion of adversarial court proceedings by evaluating evidence presented by parties to the case. The holdings of courts are explained in detail in judicial opinions because courts are bound to follow their own holdings and the holdings of higher courts in their jurisdiction in cases involving similar circumstances. Because case law as well as statutes and regulations may determine the rights and obligations of the parties involved, ascertaining applicable law is complex. Lawyers with expertise and experience in the fields involved are sought by clients to draft and negotiate agreements and ancillary documentation relating to commercial transactions, property transfers, and inheritance matters.
In civil law legal jurisdictions, judges investigate the facts of the case, act as prosecutors, and question witnesses. Lawyers represent clients in court in civil jurisdictions; however, because the majority of legal rights and obligations are codified, oral arguments in court with respect to matters of law are less frequent and less significant than in common law jurisdictions. In a civil law system, facts tend to be established prior to trial by an investigating judge who presents his or her findings at trial. Police officers collect evidence and present it in the form of a dossier to the investigating judge. Prior to trial, the investigating judge interviews the accused and witnesses and may visit crime scenes and order warrants. The investigating judge presents his or her findings to a sitting judge or panel of sitting judges who conduct the trial itself. Unlike in common law countries, where the prosecutors and defense attorneys question witnesses, in civil law countries, sitting judges assume this role. Juries are rare and sitting judges issue verdicts. Similarly, since statutes set forth most significant provisions applicable to all contracts, wills, and other legal documents, such documents are often drafted by individuals with legal training but no post-graduate legal education. Whereas in a common law system, a state or federal government brings charges against a defendant in a criminal action and victims and their families cannot be parties to a criminal case, in civil law jurisdictions, victims and their families frequently are allowed to join in as parties to a criminal prosecution and may seek damages from the accused criminal in the criminal case itself.
Legal Research:
Legal research methods vary in civil and common law countries. In civil law countries where all law is statutory, legal researchers need only locate relevant statutes, which include their most recent amendments. Because courts do not have the authority to change statutes, legal researchers do not need to locate judicial interpretations of statutes. In contrast, in common law countries, courts interpret and thereby alter the meaning of statutes. Judicial interpretation of statutes is an ongoing process. Thus, legal researchers in common law countries must not only identify relevant statutes, with their most recent amendments, but must also find the most current court cases interpreting such statutes. In common law countries, some laws are entirely judge-made and non-statutory; hence, legal researchers must also locate and update all applicable non-statutory case law.
Lawyers and judges serve different roles in common and civil law countries. In common law jurisdictions, trials are adversarial and lawyers advocate on behalf of their clients during all phases of civil and criminal proceedings. Judges preside over trials, make rulings on procedural and evidentiary motions, and, in some situations, also take the place of a jury and act as the trier of fact. The trier-of-fact determines the facts of a case at the conclusion of adversarial court proceedings by evaluating evidence presented by parties to the case. The holdings of courts are explained in detail in judicial opinions because courts are bound to follow their own holdings and the holdings of higher courts in their jurisdiction in cases involving similar circumstances. Because case law as well as statutes and regulations may determine the rights and obligations of the parties involved, ascertaining applicable law is complex. Lawyers with expertise and experience in the fields involved are sought by clients to draft and negotiate agreements and ancillary documentation relating to commercial transactions, property transfers, and inheritance matters.
In civil law legal jurisdictions, judges investigate the facts of the case, act as prosecutors, and question witnesses. Lawyers represent clients in court in civil jurisdictions; however, because the majority of legal rights and obligations are codified, oral arguments in court with respect to matters of law are less frequent and less significant than in common law jurisdictions. In a civil law system, facts tend to be established prior to trial by an investigating judge who presents his or her findings at trial. Police officers collect evidence and present it in the form of a dossier to the investigating judge. Prior to trial, the investigating judge interviews the accused and witnesses and may visit crime scenes and order warrants. The investigating judge presents his or her findings to a sitting judge or panel of sitting judges who conduct the trial itself. Unlike in common law countries, where the prosecutors and defense attorneys question witnesses, in civil law countries, sitting judges assume this role. Juries are rare and sitting judges issue verdicts. Similarly, since statutes set forth most significant provisions applicable to all contracts, wills, and other legal documents, such documents are often drafted by individuals with legal training but no post-graduate legal education. Whereas in a common law system, a state or federal government brings charges against a defendant in a criminal action and victims and their families cannot be parties to a criminal case, in civil law jurisdictions, victims and their families frequently are allowed to join in as parties to a criminal prosecution and may seek damages from the accused criminal in the criminal case itself.
Legal Research:
Legal research methods vary in civil and common law countries. In civil law countries where all law is statutory, legal researchers need only locate relevant statutes, which include their most recent amendments. Because courts do not have the authority to change statutes, legal researchers do not need to locate judicial interpretations of statutes. In contrast, in common law countries, courts interpret and thereby alter the meaning of statutes. Judicial interpretation of statutes is an ongoing process. Thus, legal researchers in common law countries must not only identify relevant statutes, with their most recent amendments, but must also find the most current court cases interpreting such statutes. In common law countries, some laws are entirely judge-made and non-statutory; hence, legal researchers must also locate and update all applicable non-statutory case law.
