Common Law Civil Law Essay
CIVIL-LAW AND COMMON LAW TRADITION: A
Civil law primarily contrasted against common law. The significant
difference is that, historically, common law was developed by
custom whereas civil law was developed by legal principles and the
interpretation of doctrinal writings rather than application of facts to
legal fictions. 'Common-law is extremely decentralized in terms of
the source of law (making place for evolving cultural changes) is
highly centralized in its administration because of the weight of
precedent. On the other hand, the civil-law which is centralized in
its source leaves from for a great deal of ad hoc interpretation.'
(Crump M.W.& Kahalas H. 1975). Therefore the civil-law is by its
nature more capable than the common-law and more adaptable to
The Other distinction between the common law and civil law
systems is that the role of precedent has tended to become less
significant. Common law courts have developed skills in
distinguishing earlier judgments of which they disapprove and civil
law system, precedents have a value. Civil law countries try to
ensure that there is some certainty in the law and the same issue
will be decided in the same way. Civil law tradition prevents its
judges from establishing broad principles of law in the absence of
legislation. But in the common law system there is open possibility
for the same case.
'In civil law countries, legislation is seen as the primary source of
law. Thus, courts base their judgements on the provisions of codes
and statutes, from which solutions in particular cases are to be
derived.' (MacQueenH.L. 2000) By contrast, in the common law
system, cases are the primary sources of law, while statutes are
only seen as incursions into the common law and thus interpreted
Furthermore, separation of powers is differently in civil law and
common law countries. 'Some common law countries, especially the
United States, judge are balancing the power of the other branches
of government.'(Renz,D&John, E.C. 1985). By contrast, in civil law
countries judges are only applying the law. There are, however,
sociological differences. 'Civil law judges are usually trained and
promoted separately from attorneys, whereas common law judges
are usually selected from accomplished and...
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As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries.
The main difference between the two systems is that in common law countries, case law — in the form of published judicial opinions — is of primary importance, whereas in civil law systems, codified statutes predominate. But these divisions are not as clear-cut as they might seem. In fact, many countries use a mix of features from common and civil law systems. Understanding the differences between these systems first requires an understanding of their historical underpinnings.
The Historical Origins of Common and Civil Law Systems
The original source of the common law system can be traced back to the English monarchy, which used to issue formal orders called “writs” when justice needed to be done. Because writs were not sufficient to cover all situations, courts of equity were ultimately established to hear complaints and devise appropriate remedies based on equitable principles taken from many sources of authority (such as Roman law and “natural” law). As these decisions were collected and published, it became possible for courts to look up precedential opinions and apply them to current cases. And thus the common law developed.
Civil law in other European nations, on the other hand, is generally traced back to the code of laws compiled by the Roman Emperor Justinian around 600 C.E. Authoritative legal codes with roots in these laws (or others) then developed over many centuries in various countries, leading to similar legal systems, each with their own sets of laws.
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Roles of a Lawyer and Judge in Each System
In civil law countries, judges are often described as “investigators.” They generally take the lead in the proceedings by bringing charges, establishing facts through witness examination and applying remedies found in legal codes.
Lawyers still represent the interests of their clients in civil proceedings, but have a less central role. As in common law systems, however, their tasks commonly include advising clients on points of law and preparing legal pleadings for filing with the court. But the importance of oral argument, in-court presentations and active lawyering in court are diminished when compared to a common law system. In addition, non-litigation legal tasks, such as will preparation and contract drafting, may be left to quasi-legal professionals who serve businesses and private individuals, and who may not have a post-university legal education or be licensed to practice before courts.
In contrast, in a common law country, lawyers make presentations to the judge (and sometimes the jury) and examine witnesses themselves. The proceedings are
then “refereed” by the judge, who has somewhat greater flexibility than in a civil law system to fashion an appropriate remedy at the conclusion of the case. In these cases, lawyers stand before the court and attempt to persuade others on points of law and fact, and maintain a very active role in legal proceedings. And unlike certain civil law jurisdictions, in common law countries such as the United States, it is prohibited for anyone other than a fully licensed lawyer to prepare legal documents of any kind for another person or entity. This is the province of lawyers alone.
As these descriptions show, lawyers almost always have a significant role to play in formal dispute resolution, no matter in which country they practice. But the specific tasks assigned to them tend to vary quite a bit. And outside the courtroom, tasks typically performed by lawyers in one country may be performed by skilled laypeople in another.
Each country has its own traditions and policies, so for those who wish to know more about the role of legal practitioners in a particular nation it is important to do additional research.
To provide readers with a jumping-off point, here are a few examples of countries that primarily practice common law or civil law.
Common Law Countries:
- The United States
Civil Law Countries: