PUNJAB UNIVERSITY LAW COLLEGE

COMMON LAW & CIVIL LAW

The common law and civil law are the two most prevalent legal systems in the world.

Common Law
➢ Common law is not created by means of legislation but is based mainly on case law. It
also can be said Published Judicial Opinions. The principle is that the earlier
judicial decisions, usually of the higher courts, usually followed in the subsequent cases.

Civil Law
➢ Civil law on the other hand is written codified statutes that are created by Legislature.
Civil law place much less emphasis on precedents than they do on the codification of law.

Historical Origins;
Common Law:
• The original source of Common Law can be traced back to English Monarchy from
the decisions of the King’s Courts as they used to issue formal orders called “writs”
when justice needed to be done. Later it was adopted in USA, Canada, New Zealand
and other countries. Because writs were not sufficient to cover all the situations,
courts of equity were ultimately established.
• Those courts were established by William the Conqueror, by Norman Conquest.
William was the first King to unite these accumulated customs and traditions and
create courts and a legal system common to whole country hence Common Law.
• The Common Law system developed alongside the courts of equity which devised
remedies to legal issues. The decisions of these courts were recorded and published,
and therefore became possible for judiciary to look at previous decisions (precedents)
and apply them to the case.

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Civil Law
• Civil law’s origin can be traced back to code of laws (Corpus Iuris Civilis) compiled
by Roman Emperor Justinian (Roman Law).
• Authoritative legal codes with roots in these laws then developed over many
countries, leading to similar legal systems, each with their own set of rules.

Features Common Law Civil Law

Written Not Always Always
Constitution
Judicial decisions Binding Not binding on 3rd parties;
however, administrative and
constitutional court decisions
on laws and regulations
binding on all
Writings of legal Little influence Significant influence in some
scholars civil law jurisdictions
Freedom of contract Extensive – only a few provisions More limited – a number of
implied by law into contractual provisions implied by law into
relationship contractual relationship
Comparison:
➢ Source of LAW:
In common law legal system, the main source of law are judge made laws. Even if there
are statutes that complement them, the primary sources of law are case laws. The law is
to be framed when dispute arises and the rules of the law are usually generalized out of
judicial decisions. This is what we call precedent system. This is based on rule stare
decisis. In common law, the role of legal scholars in the development of law is also
relatively minimal as judges are primary factors behind making and development of law.
➢ In the civil law legal system, on the other hand, parliamentary legislations are the main
sources of the law. There are pre-enacted general legal rules incorporated in
comprehensive codes. Unlike the common law system, however, judges, in principle
have the role of only interpreting law. Ethiopia, for example, Predominantly follows the
civil law legal system. There are the Civil Code, Commercial Code, Maritime Code,
Criminal Code, Civil Procedure Code, Criminal procedure Code and many other
legislations on different topics. But, Ethiopia also adopt some sort of precedent system.
The legal interpretation rendered by the Federal Supreme Court cassation division with
five judges binds all courts in the country.
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❖ Despite the above differences, it should be noted, however, that there are statutes
in common law systems and the judges in civil law countries may make laws in
the form of interpretation and gab filling. With the objective of insuring certainty
and stability, civil law judges are also adopting case laws as soft laws.
➢ Structure of Courts:
The second difference is on the structure of courts. Civil law courts make a distinction
between public and private laws and have specified courts for specific matters. The
specialization of courts help to benefit from experts and accommodate local customs.
While private law matters are dealt by ordinary courts, there are specific courts for public
law disputes like administrative courts, constitutional courts, criminal courts. In the
common law, on the other hand, courts have usually a generalized jurisdiction. In the
United States, for example, they are unified courts in which there is one appellate court
and a supreme court.
➢ Roles of Justice Actors:
The third significant difference of the two systems is the roles of justice actors,
particularly, lawyers and judges play in the judicial proceedings. Whereas the common
law is known for its adversarial system, the civil law is known for inquisitorial system.
In the common law, lawyers use whatever permissible means to establish their claim
and/or disprove facts of adversary. The judges are relatively passive. In addition, in the
American system there is a party controlled fact finding procedure called discovery.
During discovery, parties are required to disclose facts and evidences including those
needed by the adversary. Further, there is a jury system in which lay men are chosen to
establish facts in a dispute. In common law countries in general and the United States in
particular trial by jury has become a constitutional right. In the civil law, judicial control
of dispute resolution is the principle. The judges have considerable role in establishing
the fact by inquiring parties and/or their lawyers as well as witnesses. In Ethiopia, for
example, the court has every right to examine the parties and their witnesses any time it
wills. But there are increasing trends in which the common law judges and civil law
advocates are becoming more active in court proceeding

Conclusion
The examination of common law and civil law reveals that there are more similarities
than differences between these two legal systems. Despite very different legal cultures,
processes, and institutions, common law and civil law have displayed a remarkable
convergence in their treatment of most legal issues
Under the contemporary pressure of globalization, modern civil law and common law
systems show several signs of convergence. Many of the differences that used to exist
between the civil law and common law are now much less visible due to the changes
which have occurred both in common law and civil law.
The differences which exist between civil law and common law should not be
exaggerated. It is also important to note that differences on many issues exists both
among civil law and among common law countries. The differences between civil law
and common law systems are more in style of argumentation and methodology than in
content of legal norms. By using different means, both civil law and common law are
aimed at the same goal and similar results are often obtained by different reasoning.
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While a certain rapprochement between civil law and common law system is evident
and this tendency will continue, there are still important differences which will continue
to exist for infinite period.

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