Civil Law vs.

Common Law

Diffen › Legal

Legal systems around the world vary greatly, but they usually follow civil law or
common law. In common law, past legal precedents or judicial rulings are used
to decide cases at hand. Under civil law, codified statutes and ordinances rule the
land. Some countries like South Africa use a combination of civil and common
law.

Comparison chart

Differences — Similarities —

CompareinAnythingLegal
Legal System Legal system originating ›› system
Federal Law by
characterized vs. State Law GO

Europe whose most prevalent case law, which is law developed

Civil Law
feature is that its core principles Common Law
by judges through decisions of
are codified into a referable courts and similar tribunals.
system which serves as the
primary source of law.

Role of judges Chief investigator; makes rulings,
usually non-binding to 3rd
parties. In a civil law system, the
judge’s role is to establish the
facts of the case and to apply the
provisions of the applicable code.
Though the judge often brings the
formal charge.
Makes rulings; sets precedent;
referee between lawyers.Judges
decide matters of law and, where
a jury is absent, they also find
facts. Most judges rarely inquire
extensively into matters before
them, instead relying on
arguments presented by the part

Countries Spain, China, Japan, Germany, United States, England, Australia,

most African nations, all South Canada, India
American nations (except
Guyana), most of Europe

Constitution Always Not always

 Precedent Only used to determine
administrative of constitutional
court matters
Role of jury In cases of civil law, the opinion
of the jury may not have to be
unanimous. Laws vary by state
and country. Juries are present
almost exclusively in criminal
cases; virtually never involved in
civil actions. Judges ensure law
prevails over passion.
History The civil law tradition developed
in continental Europe at the same
time and was applied in the
colonies of European imperial
powers such as Spain and
Portugal.
Sources of Law 1. Constitution 2. Legislation –
statutes and subsidiary legislation
3. Custom 4. International Law 5.
[Nota bene: It may be argued that
judicial precedents and
conventions also function within
Continental systems, but they are
not generally recogn
Type of argument Inquisitorial. Judges, not lawyers,
and role of ask questions and demand
lawyers evidence. Lawyers present
arguments based on the
evidence the court finds.
Evidence Taking Evidence demands are within the
sovereign inquisitorial function of
the court — not within the
lawyers’ role. As such,
“discovery” by foreign attorneys is
dimly viewed, and can even lead
to criminal sanctions where the
court’s role is usurp
Evolution Both systems have similar
sources of law- both have
statutes and both have case law,
they approach regulation and
resolve issues in different ways,
from different perspectives
Contents: Civil Law vs Common Law
1 Origins
2 Modern Common and Civil Law Systems
3 Countries following Civil or Common Law
4 Legal representation
Used to rule on future or present
cases
Juries are comprised only of
laypersons — never judges. In
the U.S., juries are employed in
both civil and criminal cases.
Their function is to weigh
evidence presented to them, and
to find the facts and apply the
law.
Common law systems have
evolved primarily in England and
its former colonies, including all
but one US jurisdiction and all but
one Canadian jurisdiction. For the
most part, the English-speaking
world operates under common
law.
1. Constitution (not in the UK) 2.
Legislation – Statutes and
subsidiary legislation 3. Judicial
precedent – common law and
equity 4. Custom 5. Convention
6. International Law
Adversarial. Lawyers ask
questions of witnesses, demand
production of evidence, and
present cases based on the
evidence they have gathered.
Widely understood to be a
necessary part of the litigants’
effective pursuit or defense of a
claim. Litigants are given wide
latitude in US jurisdictions, but
more limited outside the US. In
any event, the litigants and their
lawyers undertake to a
Both systems have similar
sources of law- both have
statutes and both have case law,
they approach regulation and
resolve issues in different ways,
from different perspectives
 5 Constitutions
6 Contracts
7 Precedent
8 American vs. British Common Law
9 History
10 References

Origins
Historians believe that the Romans developed civil law around 600 C.E., when the
emperor Justinian began compiling legal codes. Current civil law codes developed
around that Justinian tradition of codifying laws as opposed to legal rulings.

Common law dates to early English monarchy when courts began collecting and
publishing legal decisions. Later, those published decisions were used as the basis to
decide similar cases.

Modern Common and Civil Law Systems

Today the difference between common and civil legal tenets lies in the actual source
of law. Common-law systems make refer extensively to statutes, but judicial cases are
considered the most important source of law, allowing judges to pro-actively contribute
to rules. For example, the elements needed to prove the crime of murder are
contained in case law rather than defined by statute. For consistency, courts abide by
precedents set by higher courts examining the same issue.

In civil-law systems on the other hand, codes and statutes are designed to cover all
eventualities and judges have a more limited role of applying the law to the case in
hand. Past judgments are no more than loose guides. When it comes to court cases,
judges in civil-law systems are more like investigators, while their equivalents in the
common-law systems are rather arbiters between parties presenting arguments.

Below is a discussion on civil vs common law systems:

The differences between common law and civil law systems..

Countries following Civil or Common Law

The United States, Canada, England, India, and Australia are generally considered
common law countries. Because they were all once subjects or colonies of Great
Britain, they have often retained the tradition of common law. The state of Louisiana in
the United States uses bijuridicial civil law because it was once a colony of France.

Civil law countries include all of South America (except Guyana), almost all of Europe
(including Germany, France, and Spain), China, and Japan.

South Africa, Namibia, Botswana, and Zimbabwe are bijuridical, i.e., they follow a
combination of both legal systems.

A map showing legal systems of the world. Click to enlarge.

Legal representation
In both civil and common law countries, lawyers and judges play an important role.

However, in civil law countries, the judge is usually the main investigator, and the
lawyer's role is to advise a client on legal proceedings, write legal pleadings, and help
provide favorable evidence to the investigative judge.

In common law, the judge often acts as a referee, as two lawyers argue their side of
the case. Generally, the judge, and sometimes a jury, listen to both sides to come to a
conclusion about the case.

Constitutions
Though not a rule, common law countries may not always follow a constitution or a
code of laws.

In civil law, the constitution is generally based on a code of laws, or codes applying to
specific areas, like tax law, corporate law, or administrative law.

Contracts
Freedom of contract is very extensive in common law countries, i.e., very little or no
provisions are implied in contracts by law. Civil law countries on the other hand have a
more sophisticated model for contract with provisions based in the law.

Precedent
The decisions of judges are always binding in common law countries, althought that
does not mean the decision may not be appealed. In the United States, for example,
cases may be heard by a network of federal or state courts, with the federal Supreme
Court holding ultimate power. Generally, the ruling of the last court that a case visits
remains the final, binding verdict. That case may later be used as precedent to argue
similar cases in the future.
In civil law countries, only the judicial decisions of administrative and constitutional
courts are binding outside the original case. In essence, the concept of precedent, i.e.
past cases can determine the outcome of future ones, is not used.

American vs. British Common Law

Because it began as a colony of England, the United States inherited many traditions
of British common law, including habeas corpus and jury trials. After the American
Revolutionary War, one of the first acts of the new government was to adopt existing
English common law in full, unless it contradicted the U.S. Constitution.

However, in 1938, the U.S. Supreme Court ruled that there will be “no general
common law.” So, from that year forward, federal courts deciding issues that
originated in states had to look to the state judicial interpretations of those matters.

The 1938 decision was later amended so that the federal government could develop a
common law based on uniquely federal interests, such as war, foreign policy, taxation,
etc.

History
Common law is a peculiar to England in its origin. Until the Norman conquest, there
were different rules for different regions of the country. But as the laws and the country
began to unite, a common law was created based on customs and rulings across the
country. These rules developed organically and were rarely written down.

European rulers on the other hand ruled on Roman law, and a compilation of rules
issued by the emperor Justinian in the 6th century that was rediscovered in 11th-
century Italy. With the Enlightenment of the 18th century, rulers from different
continental countries took to comprehensive legal codes.

References
What is the Civil Law? - LSU Law Center
Swift v. Tyson - FindLaw
Wikipedia: Common_law#United States federal system (1789 and 1938)
Wikipedia: English law

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