10 ,July 2024
Every nation has two legal systems, such as the civil law and common law. About 150 nations operate under civil law systems, whereas about 80 follow common law. They are different from one another in a few specific ways. One of the most noticeable distinctions between the common law and civil law systems is that, whereas codified legislation predominates in civil law countries, the case law system is a major source of significance in common law nations.
Countries following Civil or Common Law
We said in the previous part that 80 countries adhere to common law and around 150 follow civil law systems. A list of nations that adhere to common law and civil law systems may be found in this section. For instance, common law is practiced in nations like the United States, England, India, Canada, and Australia, whereas civil law is practiced in nations like South America (apart from Guyana), France, Spain, Germany, Japan, and China. For further information, view the chart below.
Common Law System Explained
The common law system, also referred to as judge-made law or case law, is a body of legislation created by judges. The legal principle known as common law is known as Stare Decisis, which means "to stand by things decided."
Stare Decisis is the legal doctrine that judges and courts must follow prior decisions and rulings, or case law, when addressing matters that are similar in the future.
Let’s understand this with an example!
Assuming a court renders a decision based on a certain set of facts, it is obligated to adhere to that decision in the future when rendering a decision on the same or a closely connected matter. Similarly, rulings from higher courts, such as the Supreme Court of a jurisdiction, usually have binding effect on lesser courts within that same jurisdiction.
Features of a Common Law System:
- There won't always be a written constitution or codified laws
- Generally, everything that is not expressly forbidden by law is allowed
- Rulings rendered by the highest courts can typically only be overturned by the same court or by legislation
Civil Law System Explained
We learned about common law in the part above; the civil law system will now be covered. As far as we are aware, civil law is followed in nations like those in Spain, France, the Netherlands, Germany, and a few other regions of South and Central America, as well as in Eastern, Central, and East Asian nations.
Civil law systems commonly referred to as Continental or Romano-Germanic legal systems are followed by more than 60% of the world's population. They usually take positions based on concepts, categories, and rules that have their roots in Roman law. Not only that, but local culture and customs occasionally improved or changed them, and canon law also had a significant impact.
Civil law, to put it technically, is the body of laws that governs individuals, their property, and the relations that develop between them; it excludes all other forms of regulation, such as commercial, labor, or criminal law.
Difference between Civil Law and Common Law
From the above information, we come to know that there are mainly two legal systems in the world i.e. common law and civil law. Now, the time has come to know how they are different from each other. Hence, read further to know key differences between civil law system and common law systems.
Common Law:
Origin: It began in England and spread to countries including Canada, India, Australia, and the United States as a result of British colonization.
Role of Precedent: The stare decisis set of guidelines, which maintains that courts are bound by earlier rulings (precedents) rendered in comparable instances by higher courts, is the cornerstone of the common law system. As a result, a system of checks and balances has emerged, with rulings from higher courts—also referred to as appellate courts—binding on lower courts.
Codification: Laws are not established by a single statute; rather, they change over time as a result of customs, court decisions, and other factors.
Role of Judges: In this case, judges are essential because they must understand the law and apply it to a particular case. These decisions also establish legal precedents and principles.
Flexibility: Case-by-case rulings establish legal principles, which make the law more flexible and adaptable to changing social norms and circumstances.
Civil Law:
Origin: Civil law, which was codified in continental Europe during and after the Napoleonic era, was established on Roman law. It is common throughout most of Europe, Latin America, and a few countries where European colonization took place.
Codification: Set apart by comprehensive codes that delineate fundamental legal concepts, including the criminal, civil, and commercial codes.
Role of Precedent: Precedent does not serve as a legally binding source in civil law systems. Beyond what is contained in the law, judges have a very less power and authority to interpret it; codified regulations and statutory law are the main sources of authority for legal decisions.
Role of Judges: In civil law systems, judges interpret and create laws more in accordance with the written law's enforcement than with case-by-case precedent.
Legal Predictability and Certainty: Civil law regimes sometimes give these two components a high weight because laws are expressed explicitly in codes and legislation. It might therefore be less adaptable than common law systems.
Key Differences:
Source of Law: Civil law is formed using codified legislation and legal rules, whereas common law is developed adhering to precedents and court decisions.
Judges' roles: In civil law, a court put on the laws and does not create precedents whereas common law judges create precedents and apply codified laws.
Flexibility: Common law systems are quite adaptive and flexible than civil law systems.
Geographic Distribution: As compared to Civil law systems, common law is quite established and widespread in former British colonies and Anglo-American countries whereas civil law is more prevailing in Latin America, Europe, and some areas of Asia.
Legal Certainty Predictability: When it comes to legal certain predictability, it can be said that both systems have influenced each other because of legal globalization and establishing hybrid legal systems.
Conclusion
From the explanation above, it is clear that while both the common law and civil law systems serve as essential foundations for legal systems, there are notable differences between them in terms of their applications, origins, sources of authority, and other factors.
Although common law derived from judge-made statutes and precedents may be easily modified and adjusted, it may not always provide the clear understanding that codified civil law does. Conversely, civil law's reliance on codified rules encourages legal certainty but could make it more difficult to adapt to changing social norms.
Hybrid legal systems have developed as a result of the ongoing effect of globalization on legal practices. These systems combine aspects of both legal traditions to satisfy the many demands of contemporary communities while upholding fundamental legal principles.