As an expert in the field of law, I am often asked about the differences between common law and civil law. These two legal systems have distinct origins and approaches, and understanding their differences is crucial for anyone navigating the legal landscape. In this article, I will provide a comprehensive overview of common law and civil law, highlighting their key characteristics and how they are applied in different countries.
The Source of Law
The main difference between common law and civil law lies in their source of law. Common law, which is primarily used in countries such as the U.S., originated in medieval England and is based on judicial precedent. This means that judges in common law systems interpret and develop the law based on previous court decisions. On the other hand, civil law, which is common in Europe and Latin America, is based on comprehensive and codified legal codes. In this system, judges apply these codes to specific cases, rather than relying on precedent.
Flexibility vs.
RigidnessThere is a common belief that common law systems allow for flexible interpretation of facts, while civil law is rule-based and rigid. However, this is not always the case. For example, the historic ruling on company law in the case of Salomon v. Salomon (1897) stated that “the only guide must be the law itself”, demonstrating that English common law can also be inflexible.
Similarly, civil law systems can also allow for flexibility in interpretation depending on the specific case at hand. Furthermore, while common law may have originated in medieval England, it is still very much in force in many countries today. Both the United States and the United Kingdom operate under a dual system of common and civil law.
Cultural Influences
Another interesting aspect to consider is the cultural influences on common law and civil law systems. For example, common law countries around the world, including the United States, have adopted English legal terminology and even the use of wigs in court. On the other hand, civil law systems are often influenced by the legal traditions of the country's former colonizer.Impact on Daily Life
For most Americans, the difference between common law and civil law does not have a significant impact on their daily lives.However, it is important to note that in civil law systems, a court's previous decisions are not binding on future decisions. This means that changing or annulling a principle of administrative law may or may not be legally possible and should be verified. In contrast, common law systems rely heavily on judicial precedent, meaning that court decisions are binding and can shape future laws and rulings. This is why it is often said that common law is constantly evolving.
The Role of Legislators
In civil law systems, a legislator (formerly a monarch, but nowadays usually a parliament) writes a law and codifies it. This means that all laws are written down in a code, making it easier for citizens to understand their rights and obligations.On the other hand, common law systems do not have a comprehensive legal code. Instead, laws are developed through court decisions and precedents.
Application in Different Countries
Today, common law is used in many countries that were formerly under English rule, including the United States. However, it is important to note that the term “civil law” can also refer to a legal system as a whole. In this sense, there are many countries that have adopted characteristics of both common law and civil law in their legal systems. For example, a number of states in the U.S., including Alabama, have recently abolished laws that allowed for common-law marriage. This shows that even within a country that primarily uses common law, there can be variations and influences from civil law.
