PI005U04

GROUP 1
AHMAD FARHAN BIN JAMIL
(2019226662)
ANISA IZZATI BINTI ASLIAN
(2019215516)
NUR NADIA NATASHA BINTI MOHD ZAIDI
(2019240008)
NURUL HASIFAH BINTI AZAHAR
(2019401364)
ZUBLI QUZAIRYL BIN ZUBLI
(2019202964)
HANI NAJWA BINTI HANAFI
(2019284378)
THE COMMON LAW SYSTEM AND THE CIVIL LAW SYSTEM ARE TWO
DIFFERENT LEGAL SYSTEMS; THEY HAVE DEVELOPED IN DIFFERENT
GEOGRAPHICAL AREAS AND HAVE HAD DIFFERENT STARTING ORIGINS AND
THEREFORE DIFFERENT HISTORY. IN LIGHT OF THE FOREGOING STATEMENT,
DISCUSS BRIEFLY THE HISTORY OF EACH SYSTEM, THEIR CHARACTERISTICS,
DIFFERENCES BETWEEN THEM AND ADVANTAGES AND DISADVANTAGES OF
EACH SYSTEM.
INTRODUCTION
In this written assignment, the main discussion is about common and civil legal system.
Both legal systems had developed centuries ago and is being used by many countries nowadays.
The legal systems will be discussed from many aspects and without biased. At the end of this
written assignment, a conclusion should be made to decide the best legal system.
ORIGIN OF COMMON LAW.
The English common law originated in the early Middle Ages in the King’s Court
(Curia Regis), a single royal court set up for most of the country at Westminster, near London.
Until the late 19th century, English common law continued to be developed primarily by judges
rather than legislators.
The common law of England was largely created in the period after the Norman Conquest of
1066. The main sources of the common law during the Middle-Ages are Plea Rolls and Year
Books.
Important consolidation occurred during the reign of Henry II (1154–89). Royal
officials roamed the country, inquiring about the administration of justice. Church and state
were separate and had their own law and court systems. This led to centuries of rivalry over
jurisdiction, especially since appeals from church courts, before the Reformation, could be
taken to Rome.
HISTORY OF CIVIL LAW.
The term civil law derives from Latin words that is Ius Civile. It means, Law of the
citizen of the Roman. Compilation of the Roman Law was Commissioned by Emperor
Justinian. The law is known as Corpus Juris Civilis or Justinian Code in eleventh century Italy
and sixteenth century. Scholar throughout Europe adapted the principles of ancient Roman Law
to contemporary needs. By the late middle ages, Civil Law and Canon Law were taught at most
universities and formed the basis of a shared body of legal thought.
Custom Law in European countries was systematized with civil law to create harmony.
For example, Dutch jurist, Hugo Grotius synthesized Roman Law and Dutch customary into a
cohesive whole in 1631. In eighteenth century, a reformation of rulers and jurists rationalize
the law to produce comprehensive and systematic legal codes. For instance, Austria’s 1786
Code of Joseph and Complete Civil Code 1811, Prussia’s Complete Territorial Code 1794 and
France Civil Code (Napoleonic Code) of 1804.
CHARACTERISTICS OF COMMON AND CIVIL LAW.
The feature of common law legal system is an unwritten law. Common law is a law that
developed by judges through decision of courts and similar tribunals. It is also a law that not
being codified into a systematic code as the law is being made based on the judicial precedent
and case law. Judicial precedent known as a decision that have been made by a court in previous
cases and it can be used in other cases as well if they have similar facts. The reason why the
judicial precedent is binding is because to ensure the consistency in the usage of law. In
common law judges play passive roles and act more like a referee football. This is because
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judges did not actively participate in the investigation and even during the tribunal. Judges in
common law only need to give a final decision on which side is right and which side is wrong.
Common law practice and adversarial system and applied a jury system where jurist will study
the facts of the case.
Meanwhile, the feature of civil legal system is it is a written law and a codified set of
law which mean it has been arranged into a systematic code. The judicial precedent are not
binding because judge only need to refer to the law itself. In civil law legal system, judge plays
active roles because judges need to actively participate in the investigation. Furthermore, main
source of civil law is statutes and subsidiary. civil law applied an inquisitorial system which
court and judges are the one who will control the case and did not applied a jury system as
judge is the one who will established and study the relevancy of the facts to apply the provisions
of the applicable code.
DIFFERENCES BETWEEN CIVIL LAW AND COMMON LAW.
There are many differences regarding common law and civil law. One of the obvious
differences are the history behind them. Civil law was derived from the Roman Empire and as
a result of the adaptation of ancient Roman legal principles by the rulers and legislative bodies
in continental Europe during the 18th century, comprehensive legal codes were established.
However, in Common law legal system, it was developed in England after the Norman
conquest by justices deciding individual cases brought before them which draw on local
customs, legal principles applied in various regions of the country, and also monarch rulings.
Civil law legal system was originated in Europe whose most prevalent feature is that
its core principles are codified into a referable system which serves as the primary sources of
law but for Common law the legal system are characterized by case law, which is law
developed by judges through decisions of a courts and other similar tribunals. Some examples
of countries that adopt Civil law legal system are Spain, China, Japan, Germany, most African
nations, all South American nations except for Guyana and most of Europe. In Common law,
countries that adopt its legal system are United States, England, Australia, Canada, India and
Malaysia.
Moreover, the role of judges in Civil law legal system can be described as
“investigators” as they generally take the lead in the proceedings by bringing charges,
establishing facts through witness examination and applying remedies found in legal codes.
Different from Civil law, the role of judges in Common law are judges are in charged to make
rulings, sets precedent, become a referee between lawyers. Judges also decide in the matters of
law where a jury is absent and they also find facts. Other than that, in Civil law legal system,
lawyers still represent the interests of their clients in civil proceedings but they have a less
central role. In contrast to that, lawyers in Common law legal system makes presentations to
the judge and sometime to the jury and they also examine witnesses themselves.
The use of precedents in Civil law are judges can decide whether or not they want to
rely on the precedents set by previous courts to interpret those laws and apply them into
individual cases. On the other hand, Common law apply the concept of judicial precedent
where judges play an active role in shaping the law since the decisions a court makes are then

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used as a precedent for future cases. For the sources of law in Civil law they use constitution,
legislation such as status and subsidiary legislation, custom and international law. However, in
Common law legal system the difference sources of law are constitution are not used in the
United Kingdom, convention and judicial precedent such as common law and equity.
Furthermore, the type of argument used in Civil law are inquisitorial which are the role
of a court to uncover the truth not to be a referee between two sides presenting to a judge or
jury who is right and who is wrong. Unlike the Civil law legal system, Common law use
adversarial type of argument where two sides present their argument equally in front of a judge
or juries before a decision is made.
There is no jury in civil legal system but there are use of lay judges that are not
appointed to their impartiality but generally area of expertise but there will be a jury in some
civil cases such as defamation and assault cases whereas in Common law legal system, jurors
are in charged with the responsibility whether by the facts of the case a person is guilty or not
guilty of the offence for which he or she had been charged for.
ADVANTAGES OF COMMON LEGAL SYSTEM.
Common legal system has a strong reliance on the judicial precedent as it is the core of
the system not statutes or legislations. The legal principles in this system are from the previous
cases that are applied to similar facts in later cases to make sure the results are in consistent
with the precedents.
Secondly, common legal system is faster, flexible and responsive. It reacts and responds
quickly to change social values and community expectation. This system can be amended
according to the need for change. It can only be done by the rules of change by judges and
courts through the formal process while reviewing other case. The courts can also achieve law
refer faster as it does not bound to procedural process.
Furthermore, common legal system works effectively since it provides stability and
consistency in the legal system. Parties involved can understand the decisions based on
precedents rather than personal or emotion-based views or arbitrary judgements. Precedents
tend to lend the authority and experiences to the judges to make it more effective and reliable.
Lastly, it follows the principle of fairness and equality. The judges are not controlled by
the ideology and party politics since it relies merely on the presentation of both parties and
from that justice should be emerge from the adversarial dynamic of the process. It gives the
chance for the both parties to compete with each other to prove their side of the case.
ADVANTAGES OF CIVIL LEGAL SYSTEM
Legal system originating in Europe whose most prevalent feature is that its core
principles are codified into a referable system which serves as the primary source of law. Civil
legal system is less prone to bias and abuse by judges who are easily influenced or swayed by
their personal beliefs or emotions. It is fixed and cannot be anulled so judges do not have the
entitlement to fill bias to certain disputing party.

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 The second advantage of civil legal system is it is most likely to be just and fair for
everyone to access the court system because judges act as truth finders to find the truth and
supplemental evidence. If during the summary process the judge found sufficient evidence of
guilt against the defendant, then only the judge will recommend a trial.
Other than that, civil legal system has a better principle that an average person can be
fully aware of the consequences of his/her actions by referring to the written law. Its is given
beforehand in such a way that the person can only be judged according to a known law and not
an abitrary one.
Lastly, the advantage of civil legal system is that it requires less cost because it uses an
inquisitorial system of justice. In comparison to adversarial, this system will not be using a lot
of cost since everything will be handled by the judges as it will not depend merely on the skills
of lawyers.
DISADVANTAGES OF COMMON LAW.
The disadvantages include the perpetuation of bad judgments and certain difficulties
where there is no precedent for the case before the court. Once a poor decision has been taken
by a greater court, that decision will stay law until the same tribunal or greater court has
overruled the judgment. Courts do not want to overrule their own choices unless they are
absolutely essential, and so poor choices can stay law for a long time to come.
Another problem area is where there is no precedent for the court to apply to the case
before it. In such instances, a tribunal will have to rule where there has been no prior law. This
will cause lack of review of the case. Courts lack the staff, time, resources and opportunity to
take full account of the changes they make to common law. The draft legislation will be
reviewed in Parliament at a number of phases, including investigations, investigations,
parliamentary committees, law reform bodies and consultations, before it is drawn up and
implemented. A judge or board of magistrates, on the other hand, has minimal time and
resources at their disposal when making choices on common law.
Other than that, the problem of common law is that the law itself is not proactive. Courts
can deal only with cases brought before them. Laws and precedents may clearly be out of date
and need to be reformed, but until such time as appropriate criminal charges are set or
appropriate civil action is launched, there is no chance for such legislation and precedents to
be altered.
It has stare decisis’ rule. Judges are under obligation to rule the same as their colleagues
before them. While precedents are examined with respect the judge has enough does not have
flexibility to apply the law differently to different situations.

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DISADVANTAGES OF CIVIL LAW.
Civil law is very static, a judge can never interfere in the field of law by providing broad
interpretations. The judge can only have a narrow margin of appreciation can be applied to
written law. This absence of flexibility in civil law makes it impossible to adapt to moral
circumstances, as civil law is a textual law.
Civil law provides too much authority to the legislature and not enough to the judiciary.
The civil law parliament can unilaterally pass any law, even the most arbitrary of them, which
also contributes to injustice.
Other than that, civil law rigid and hard to modify in moment and circumstances making
it time-consuming and not simple to adjust to emergency circumstances as civil law heavily
rely on codified laws.
CONCLUSION
From the discussion above, it can be said that common legal system is the best legal
system compared to civil legal system. This is because common legal system has a strong
reliance on precedents which make it more efficient, it is flexible and responsive, it provides
stability and consistency and it follows the principle of fairness as all person is innocent before
the court.

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REFERENCES
Kiralfy,Glendon(2018).CommonLaw[Online].Available:https://www.britannica.com/topic/co
mmon- law/Public-law . [2018, July, 26]
Ashgar,(2009):AFirstLookAtTheMalaysianLegalSystem,http://irep.iium.edu.my/42614/1/426
14.pdf
Vron (2017): Disadvantages Of Civil Law,https://proetkontra.com/question/civil-law-
advantages-and-disadvantages/
Abdulah, N. C. (2013). Questions & Answers on Malaysian Courts, Statutes, Cases &
Contract, Tort and Criminal Law. International Law Book Services.
Victoria, Cromwell (2019). Common Law VS Civil Law : An Introduction To The different
Legal System. [Online]. Available : https://barbriqlts.com/common-law-vs-civil-law-an-
introduction-to-the-different-legal-systems/ . [2019,July,13]
Diffen (n.d.)*. Civil Law vs. Common Law . [Online]. Available :
https://www.diffen.com/difference/Civil_Law_vs_Common_Law . [2019,July,12]

Piyali Syam (2014). What is the Difference Between Common Law and Civil Law? .
[Online]. Available : https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/ .
[2019,July,13]
Vistra (2017). Common Law vs. Civil Law: A Rough Guide for Your Business. [Online].
Available : https://www.vistra.com/insights/common-law-vs-civil-law-rough-guide-your-
business . [2019,July,13]
World Bank Group (n.d.)*. Key Features of Common Law or Civil Law Systems. [Online].
Available : https://ppp.worldbank.org/public-private-partnership/legislation-
regulation/framework-assessment/legal-systems/common-vs-civil-law#sumary .
[2019,July,13]

Law student (2018). Common and Civil Law Are Two Very Different Legal Systems.
[Online]. Available : https://www.lawteacher.net/free-law-essays/common-law/common-and-
civil-law-are-two-very-different-legal-systems-common-law-essay.php . [2019,July,15]

Citizens information (n.d.)*. Role of the jury. [Online]. Available :

https://www.citizensinformation.ie/en/justice/courtroom/jury.html . [2019,July,15]
noel, g. l. (2007). world bank. Retrieved from PUBLIC-PRIVATE-PARTERSHIP-LEGAL
RESOURCECENTER:https://ppp.worldbank.org/public-private-
partnership/legislation-regulation/framework-assessment/legal-systems/common-vs-
civil-law
student, l. (2018, february 2). what is common law?