differences between Common Law and Civil Law systems

The Civil Law System

It is believed that the Twelve Tables of Rome, which meticulously organised the Roman Customary Law, were constructed about 450 B.C., marking the beginning of the Civil Law system. Owing to the Roman invasion of Europe, other countries adopted civilised systems, with Germany adopting Roman Law in its entirety. The Civil Law systems of Germany and France are relatively similar to Roman Law, with a few minor alterations from their individual legal traditions. The Justinian Corpus Civillis, dating from 553 A.D., predates the Common Law system.

The Common Law System

The Common Law originated with the Normans in 1066 A.D. Due to strong colonial power, the English Common Law may be found in many legal systems, including India, Australia, and South Africa. The colonial era made it possible for the English Common Law to be extensively dispersed over the globe, having an impact in Asia and Africa. While the Romans controlled England for nearly four centuries, their impact on the English Law System was minimal. The development of English law was largely due to the efforts of legal practitioners, with little input from authors. English courts sometimes cite authors in their decisions, although few texts are regarded as authoritative. Some of the key differences between both system are:

Judge made Law

Because to the different ways in which the theory is treated in the Civil Legal Tradition and the English Common law, the idea of stare decisis is an extremely important consideration while making this comparison. The theory establishes a hierarchy in which judgements made by the highest court have precedential weight not only over decisions made by subordinate courts but also over those made by the court that originally reached the decision.

It has been suggested that the English Common Law grants judges broader discretionary powers, allowing them to better adapt the law to the shifting circumstances brought on by the development of society. In the past, judges were the ones who crafted new laws by devising answers for the cases that were brought before them. In addition to being expected to follow the laws and act in accordance with established practice, judges have significant influence over the development of legal norms. When legislatures establish new bodies of law, the court is permitted to amend the codes via statutory interpretation and is able to supplement the codes with newly judge-made rules. This is possible because the court has the authority to make new rules.

Previous judgments in Civil jurisdictions

In the tradition of Civil Law previous judgements are considered to be persuasive; nonetheless, judicial declarations do not have the force of law and cannot be used as precedent in later instances. The majority of the Civilian system is based on rules that restrict the authority of judges. Under the framework of the Civil Law Tradition, it is the responsibility of a judge to accurately interpret and implement the laws. A judge is unable to make changes to the law, and they must adhere to the statute as it is now written. As a consequence of this, a large number of civil codes are not amended often enough, despite the fact that society is always evolving.  Glendon, Carozza & Picker state the "...inescapable dependency of legislation on the judges and administrators who interpret and administer it" is something that modern civil law systems are beginning to acknowledge. Since it is essential to accurately understand and implement the written law in a civil law system, case law, also known as jurisprudence or Rechtsprechung, plays a key part in these types of legal systems.

Code, Regulations and Acts of Law

Civil Law

The Civil Law was first codified in Justinian's corpus iuris civillis, which is still considered a significant legal authority today. The system of Civil Law is based on codified laws, and legislation is still an important component of the system. The statutes, which are written in the form of codes, are the fundamental component of the civil law. Thus, reforming codes is not a simple task. The German Burgerliches Gesetzhuch 1896, which was one of the earliest codes to be written, did not take into mind the changes that had occurred in society.

Common Law

Due to the absence of a constitution in our legal system, the Common law system has not been codified. This is a distinctive aspect of our legal system. For instance, in the United States of America, several of the states that follow Common Law have their own constitutions. The Common Law places a significant emphasis on precedent and laws created by individual judges. On the other hand, legislation is a significant factor that contributes to the completion of case law. Since there are potential repercussions for the whole body of law, some judges who use common law are hesitant to make modifications to the legal system.

Key differences

In 1922, the world was in the process of being divided along the divide between Common Law and Civil Law. Nonetheless, this is no longer the case since significant variances are becoming less noticeable. Some people hold the opinion that the distinctions between the two are "superficial," while others believe that current society has evolved as a direct result of the rise of globalisation. Comparative methods make it possible for different legal systems to learn from and take inspiration from one another in order to develop more effective solutions. A significant number of civil courts are now using precedent to justify their decisions. Countries with civil legal systems, like Germany and France, have consistently adhered to precedent in court. Because of its greater antiquity, the Civil Law has had a significant impact on the Common Law. The Civil Law is the source of the Law of Obligations, which was later incorporated into the Common Law. One case that illustrates this is Donoghue v. Stevenson, which led to the establishment of a strict duty of care that is today taught in both systems in their legal education institutions.

Conclusion

 In general, the use of comparative methods revealed some fundamental distinctions between the legal systems of the United States (Civil Law) and the United Kingdom (Common Law). The historical context of the two systems is where the fundamental contrasts in approach first emerged and developed. As compared to the function that judges play in Common Law systems, the role that judges play in Civil Law systems is considerably different. Judges appointed under the English Common Law have wider discretionary powers and the ability to change the law. Yet, judges of civil law are responsible for accurately interpreting and applying the codes. Codification is of great importance in civil law systems, which has a substantial impact on the significance of the legislation in both systems. On the other hand, the most significant distinctions have become less apparent with time. Both of these legal systems are now able to rely on the experiences of the other in order to come up with more effective responses to legal issues as a result of globalisation and comparative law methodologies.