Every nation has two legal systems: civil law and common law.
About
150 nations operate under civil law systems, whereas about 80 follow
common law. They are different from one another in a few specific ways.
One of the most noticeable distinctions between the common law and civil
law systems is that, in contrast, codified legislation predominates in civil
law countries, the case law system is a major source of significance in
common law nations.
Countries following Civil or Common Law
We said in the previous part that 80 countries adhere to common law and
around 150 follow civil law systems. A list of nations that adhere to
common law and civil law systems may be found in this section. For
instance, common law is practiced in countries like the United States,
England, India, Canada, and Australia. In contrast, civil law is practiced
in nations like South America (apart from Guyana), France, Spain,
Germany, Japan, and China. For further information, view the chart
below.
Common Law System Explained
The common law system, also referred to as judge-made law or case law,
is a body of legislation created by judges. The legal principle known as
common law is known as Stare Decisis, which means "to stand by things
decided."
Stare Decisis is the legal doctrine that judges and courts must follow prior
decisions and rulings, or case law when addressing matters that are similar
in the future.
Let’s understand this with an example!
Assuming a court renders a decision based on a certain set of facts, it is
obligated to adhere to that decision in the future when rendering a decision
on the same or a closely connected matter. Similarly, rulings from higher
courts, such as the Supreme Court of a jurisdiction, usually have a binding
effect on lesser courts within that same jurisdiction.
Features of a Common Law System:
• There won't always be a written constitution or codified laws
• Generally, everything that is not expressly forbidden by law is
allowed
• Rulings rendered by the highest courts can typically only be
overturned by the same court or by legislation
Civil Law System Explained
We learned about common law in the part above; the civil law system will
now be covered. As far as we are aware, civil law is followed in nations
like Spain, France, the Netherlands, Germany, and a few other regions of
South and Central America, as well as in Eastern, Central, and East Asian
nations.
Civil law systems commonly referred to as Continental or Romano-
Germanic legal systems are followed by more than 60% of the world's
population. They usually take positions based on concepts, categories, and
rules that have their roots in Roman law. Not only that, but local culture
and customs occasionally improved or changed, and canon law also had a
significant impact.
Civil law, to put it technically, is the body of laws that govern individuals,
their property, and the relations that develop between them; it excludes all
other forms of regulation, such as commercial, labor, or criminal law.
Difference between Civil Law and Common Law
From the above information, we come to know that there are mainly two
legal systems in the world i.e. common law and civil law. Now, the time
has come to know how they are different from each other. Hence, read
further to know the key differences between civil law systems and
common law systems.
Common Law:
Origin: It began in England and spread to countries including Canada,
India, Australia, and the United States as a result of British colonization.
Role of Precedent: The stare decisis set of guidelines, which maintains
that courts are bound by earlier rulings (precedents) rendered in
comparable instances by higher courts, is the cornerstone of the common
law system. As a result, a system of checks and balances has emerged,
with rulings from higher courts—also referred to as appellate courts—
binding on lower courts.
Codification: Laws are not established by a single statute; rather, they
change over time as a result of customs, court decisions, and other factors.
Role of Judges: In this case, judges are essential because they must
understand the law and apply it to a particular case. These decisions also
establish legal precedents and principles.
Flexibility: Case-by-case rulings establish legal principles, which make
the law more flexible and adaptable to changing social norms and
circumstances.
Civil Law:
Origin: Civil law, which was codified in continental Europe during and
after the Napoleonic era, was established on Roman law. It is common
throughout most of Europe, Latin America, and a few countries where
European colonization took place.
Codification: Set apart by comprehensive codes that delineate
fundamental legal concepts, including the criminal, civil, and commercial
codes.
Role of Precedent: Precedent does not serve as a legally binding source
in civil law systems. Beyond what is contained in the law, judges have
very little power and authority to interpret it; codified regulations and
statutory law are the main sources of authority for legal decisions.
Role of Judges: In civil law systems, judges interpret and create laws
more in accordance with the written law's enforcement than with case-by-
case precedent.
Legal Predictability and Certainty: Civil law regimes sometimes give
these two components a high weight because laws are expressed explicitly
in codes and legislation. It might therefore be less adaptable than common
law systems.
Key Differences:
Source of Law: Civil law is formed using codified legislation and legal
rules, whereas common law is developed adhering to precedents and court
decisions.
Judges' roles: In civil law, a court puts on the laws and does not create
precedents whereas common law judges create precedents and apply
codified laws.
Flexibility: Common law systems are quite more adaptive and flexible
than civil law systems.
Geographic Distribution: As compared to Civil law systems, common
law is quite established and widespread in former British colonies and
Anglo-American countries whereas civil law is more prevailing in Latin
America, Europe, and some areas of Asia.
Legal Certainty Predictability: When it comes to legal certain
predictability, it can be said that both systems have influenced each other
because of legal globalization and establishment hybrid legal systems.
Conclusion
From the explanation above, it is clear that while both the common law
and civil law systems serve as essential foundations for legal systems,
there are notable differences between them in terms of their applications,
origins, sources of authority, and other factors.
Although common law derived from judge-made statutes and precedents
may be easily modified and adjusted, it may not always provide the clear
understanding that codified civil law does. Conversely, civil law's reliance
on codified rules encourages legal certainty but could make it more
difficult to adapt to changing social norms.
Hybrid legal systems have developed as a result of the ongoing effect of
globalization on legal practices. These systems combine aspects of both
legal traditions to satisfy the many demands of contemporary
communities while upholding fundamental legal principles.
