What is common law and what are the differences between common law vs civil law?
Legal systems across the world are considered to be divided in two major categories: common law and civil law.
150 nations around the world are noted to follow the civil law system. whereas , approximately 80 nations are known to follow common law systems. There is a basic distinction between both the legal systems.
Common law systems provide significance to opinions developed by the court. On the other hand, civil law systems prioritize codified legislations.
In this article we will provide information regarding the concept of common and civil law. Along with this, the differences between common and civil law will also be portrayed.
The historical origin of common law system
The “English Crown” has been recognised for its capacity to issue orders, which are stated as “writs”.
These writs issued by the Crown have been the forming grounds of common law systems. With time, writs were not enough to cover all situations.
Due to this, equity courts were established for hearing cases and provide solutions to issues. The solutions that were presented by equity courts were based on the principles of Roman law and natural laws.
For equity courts, it became feasible to seek precedential opinions to resolve current cases.
These precedents from previous cases began to be recorded and published with time. This led to the origins of common law systems.
What is common law?
Common law is a body of unwritten laws that are based on legal precedents, which have been established by the court of law.
Common law is usually used in circumstances where judgment to a case cannot be based on existing legal statutes.
The US legal system is known to follow the common law system, which evolved from the British colonialism within the region. Additionally, common law is also known as case laws, which are based on unwritten laws that are based on precedents established by courts.
This legal system also derives its opinions from institutionalized opinions and interpretations from judicial authorities along with public juries.
Moreover, common law has been characterized for its capacity to provide inspirations in development of new legislations for the greater good.
A precedent that is widely used in common law systems is known as “stare decisis”.
This is a history of judicial decisions that form the basis of evaluating a case based on a previous judgment.
Within common law systems, the judge presiding within the court is responsible for determining the appropriate precedent that is applicable in judging a particular case.
In various cases, it has been noted that judgements passed by the higher courts are binding on cases of lower courts. Prevalence of this results in the US legal system to have stability and consistency.
However, lower courts have the power to deviate from precedents of higher courts in certain circumstances. This is when precedents passed by higher courts are obsolete and outdated.
Moreover, it is rare for a lower court to overturn precedents established in higher courts.
What is civil law?
Civil law is a body of written codes that is governed by a written Constitution.
Civil legal systems are administered by the presence of Codes that govern a variety of legal perspectives. This includes, civil code, criminal codes and codes that govern corporate, tax, administration and constitutional laws.
These codes are known to enshrine basic rights and duties of citizens. Legislative sanctions are considered to be universally binding. Due to this, civil, criminal and commercial courts have judges have a limited opportunity to make use of stare decisis or judge made laws.
However, judges in civil legal systems have the opportunity to follow earlier made judgments.
Constitutional and administrative courts have power to discredit laws and enactments within civil legal systems. Due to this, rulings of these two courts are universally binding.
Civil law systems have distinctive courts based on various laws. This means, constitutional, administrative and civil courts are compatible with legislation and administrative acts.
These courts are also recognised for their ability to comply and interpret the underlying codes.
Difference between civil and common law?
Civil legal systems are defined by their comprehensive and codified sets of legal statutes that are formulated by legislators.
This means, the civil legal system clearly defines the issues that could be tried in court, procedures that could handle claims and offenses that are punishable by law.
Moreover, within civil law systems judicial authorities use the conditions with the applicable code for evaluating facts associated with cases for developing appropriate legislative decisions.
Another feature that is associated with civil law is its capacity to conduct continuous upgrades. This is because the civil legal system aims in developing standardized codes that would create order.
Along with this, restrict the occurrence of bias in legal systems regarding differentiated application of codes to a variety of cases.
Common law systems on the other hand is known to derive institutionalized viewpoints and interpretation of judicial courts and juries to judge a case.
Compared with civil law it has been noticed that common law has the common aim of establishing outcomes associated with interpretation of legal clauses.
However, as common law is dependent on the usage of precedents, traditional jurisdictions could vary from one district to another.
For instance, a case regarding legality of marriage might be decided on different grounds within Texas compared to California. This is because both these regions have different precedents regarding the issue of legality of marriage.
Due to this, factors of common law might differ from one region to another.
However, compared to civil law having universal binding powers that allow judicial authorities to provide judgment based on existing codes and statutes.
Role of judges and lawyers in common and civil legal systems?
Both civil and common law systems have a distinctive role that is played by the judge and the attorneys.
Nations that are governed by civil law have judges, who are characterized as investigators.
Judges in civil law play a role in providing action through bringing charges, verification of facts, examination of witnesses and application of legal codes to resolve cases.
Lawyers in the civil system provide services of advocating clients in civil procedures, although their position is not obvious.
However, within common law settings lawyers are observed for their capacity to assist their clients regarding legal matters and develop petitions that are submitted in the court of law.
Civil law systems also differentiates from common law regimes, as it reduces the prioritization to debate orally, provide in-court presentations and active lawyering skills.
Civil laws also make non-litigation activities like drafting legal documents and writing of wills delegated towards quasi-legal professionals.
They assist organizations and individuals in legal drafting. However, such professionals do not have appropriate university accredited law degrees or licenses for operating the courts.
On the other hand, common law systems prioritize the presentations made by attorneys towards judges.
Moreover, lawyers in common law systems are also capable of questioning witnesses to build facts for a case.
Procedures within the common law system are referred to judges, who have increased discretion in building solutions at the end of cases in court compared to civil law systems.
Moreover, lawyers in common law systems also play a role by appearing in court for pursuing common men for pursuing them in legal issues for making them participate in the judicial proceedings.
This means, attorneys within this legal system play an active part regarding judicial activities.
On the contrary, unlike civil legal systems, it is unacceptable and illegal for anyone except licensed lawyers to present legal documentation in courts of law for others within common law regimes.
Furthermore, lawyers irrespective of their area of operation plays a major role in settlement of conflict formally. However, the duties and responsibilities of an attorney differ within the two distinctive legal systems.
This means, outside the judicial premises common law enables in handling of legal matters through a qualified lawyer.
On the other hand, civil legal systems are noted to make qualified laymen handle legal cases.
Nations governed by common and civil legal systems
Countries following civil law systems:
Nations governed by civil laws are generally past colonies ruled by the French, Dutch, German, Spanish or the Portuguese.
These nations usually envelop regions across Central and South America.
Along with this, regions within Central and Eastern Europe and East Asian nations follow civil laws.
Countries following common law systems:
Nations that are known to follow the common law system are noted to be former colonies ruled by the British.
Along with this, territories that have similar cultures inspired by the British.
These regions include:
- United States
- United Kingdom
The difference between common and civil law are based on the process that they follow in terms of providing solutions to legal cases.
Both the legal systems have the common objective for resolving legal matters with distinctive methods.
Both common and civil law lead to similar resolutions due to the principles and values of both legal systems being similar to a wide extent.