Understanding Common Law and Civil Law Systems

Our guide on understanding common law and civil law systems explains the technical and compares the two legal systems in detail. The legal systems of the world can broadly be classified into two main categories: common law and civil law. Understanding the historical background and key differences between these systems is crucial for anyone involved in international law or business. This article provides a comprehensive overview of the common law and civil law traditions, their origins, and their application in various countries.

Historical Background

The common law tradition originated in England during the Middle Ages and was subsequently applied across British colonies worldwide. The English monarchy issued writs to ensure justice was administered. However, as writs proved insufficient for all situations, courts of equity were established to hear complaints and devise appropriate remedies based on equitable principles derived from various sources, including Roman law and natural law. As decisions were collected and published, courts could reference precedential opinions for current cases, thus developing common law.

Countries with common law systems are primarily former British colonies and members of the Commonwealth of Nations, which emerged in the mid-20th century with the decolonization of the British Empire. Common law countries include, but are not limited to, the U.S.A, Uganda, Nigeria, Kenya, Ghana, and India.

Civil law, on the other hand, traces its roots to the code of laws compiled by Roman Emperor Justinian around 600 CE. Authoritative legal codes with roots in these laws developed over centuries in various countries, leading to similar legal systems with distinct sets of laws. In civil law systems, the primary sources of authority are legislation, especially codifications in constitutions or statutes passed by governments, and custom.

Countries with civil law systems are mainly former French, Dutch, German, Spanish, and Portuguese colonies or protectorates. These include, but are not limited to, Angola, Democratic Republic of Congo, Burundi, and Côte d’Ivoire.

Presently, some countries have adopted elements of both civil and common law systems. For example, Rwanda, originally a purely civil law system, adopted some common law principles after joining the Commonwealth in 2009, such as binding lower courts to decisions of the Supreme Court.

Differences Between Common Law and Civil Law

The fundamental difference between common law and civil law systems lies in the application of precedents. A precedent is a decided case that provides a basis for determining later cases involving similar facts or issues. In common law systems, judges are mandated to follow decisions of higher courts when deciding cases with similar facts or issues.

In contrast, in civil law systems, judges do not follow precedents but instead refer to provisions in codified statutes or legislation when rendering decisions. Historically, common law systems lacked written statutes, relying instead on judicial precedents, which is why countries like the UK still possess an unwritten constitution. Over time, however, common law countries have adopted legislation or statutes in addition to judicial precedents.

Common law countries use an adversarial system in legal proceedings, where parties present and argue their cases, and the judge acts as a neutral arbiter. In contrast, civil law countries use an inquisitorial system, where the judge takes an active role in preparing evidence, questioning witnesses, and finding the truth.

In common law systems, parties have the right to cross-examine witnesses, primarily to undermine their testimony. In civil law systems, parties do not have this right. However, in some civil law countries, parties can seek the judge’s permission to pose questions to witnesses through the judge.

Service of court process also differs. In common law systems, service can often be effected by any adult non-party, including professional private process servers. In civil law systems, service of process is generally reserved for judicial officers such as court bailiffs.

In common law countries, lawyers prepare their witnesses before the hearing, while in some civil law countries, preparation of witnesses is prohibited.

Similarities Between Common Law and Civil Law

Despite their differences, common law and civil law systems share some similarities:

• Both use codified statutes as a source of law.
• In both systems, parties present their submissions before the court.
• In both systems, certain cases must go through alternative dispute resolution mechanisms before proceeding to trial.

Conclusion

Ultimately, lawyers from both systems have debated which system is superior. However, the key objective remains that justice is not only done but also seen to be done. As long as both systems contribute to establishing the truth and serving justice, the debate over which legal system is better will remain unresolved.

References

Law Library – Common Law and Civil Law Traditions

Black’s Law Dictionary, 9th Edition, Bryan A. Garner, page 1295

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