As an expert in the field of law, I am often asked about the differences between civil law and common law systems. While both are legal systems used in various countries around the world, they have distinct foundations and principles that set them apart. The key difference between civil law and common law lies in its foundation. Civil law is based on codified legal codes, while common law is based on judicial precedent - previous court decisions. This means that in civil law, laws are written down and organized into codes, while in common law, laws are created through the interpretation of previous court decisions. One common misconception is that common law systems allow for more flexible interpretation of facts, while civil law is more rigid and rule-based.
However, this is not always the case. For example, the historic English decision on company law issued in the Salomon case v. Salomon (1897) stated that “the only guide must be the law itself,” proving that even common law systems can be inflexible. Another misconception is that civil law systems do not allow for judicial precedent. While it is true that article five of the French civil code prohibits judicial precedent, this article is itself annotated with precedents in the standard French edition of their civil code.
This shows that even in civil law systems, previous court decisions can still hold weight. In England, customary law held as early as the 1970s that fathers, and not mothers, had the right to custody of their children in cases of divorce. This bias kept many women trapped in unhappy marriages. However, this precedent was eventually overturned and now both parents have equal rights to custody. It is also important to note that there are many countries around the world that use a combination of both civil and common law systems. For an exhaustive list of these countries, you can refer to the Legal Systems of the World on Wikipedia. In many civil law countries, there is a separate administrative law that governs public-private partnership (PPP) agreements.
This means that governments may wish to include these rules in the agreement, and when they are already part of the underlying legislation, there is no need to repeat them in the contract. One example of how common law and civil law can intersect is in the case of Shears v. Oklahoma Bar Association. In this case, there was nothing in the Oklahoma legal code to say that a drunk driving conviction could not demonstrate an incapacity to practice law. However, a previous court decision had set this precedent, making it law. It is also important to note that there are certain terms and concepts that are unique to civil law systems and may not be understood or applied in common law countries.
For example, the terms "concessions" and "affermage" have specific technical meanings and structures that may not be familiar to those in common law systems. It is always advisable to seek local legal advice when dealing with these terms in a civil law system. The concept of common-law marriage is another example of how customary law can still hold weight in modern legal systems. This concept recognizes rights similar to those of couples who are not officially married if certain conditions are met. This is an example of how customary law can still be in force today, even in countries with predominantly civil law systems. In conclusion, while there are certainly differences between civil law and common law systems, it is important to recognize that they both have their own strengths and weaknesses.
As an expert in the field, I believe that understanding these differences is crucial for anyone working in the legal field or seeking legal advice in different countries around the world.
