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Demo Lecture 1 (LSOL)
Demo Lecture 1 (LSOL)
Introduction
Historical background of the Common and Civil legal system
Comparison between the two legal systems in general
The substantive law difference
The procedural law difference
Introduction
A legal system is a procedure or process for interpreting and enforcing the law. Legal
systems vary from country to country, and sometimes within a single country. Although they
develop in different ways, legal systems also have some similarities based on historically
accepted ideals of justice. Legal systems do fall into groups or patterns with some similar
features within each group. Among the main groups that you might encounter are: 1) common
law; 2) civil law; 3) religious law; and 4) customary law. Many countries employ more than one
of these systems at the same time to create a hybrid system. Today, our focus would specifically
be upon the two popular legal systems, the common law legal system and the civil law legal
system.
Historical Background
Civil law has its origin in Roman law, as codified in the Corpus Iuris Civilis of Justinian.
Under this influence, in the ensuing period the civil law has been developed in Continental
Europe and in many other parts of the world. The main feature of civil law is that it is contained
in civil codes, which are described as a "systematic, authoritative, and guiding statute of broad
coverage, breathing the spirit of reform and marking a new start in the legal life of an entire
nation"1. Most civil codes were adopted in the nineteenth and twentieth centuries such as French
Code Civil, 1804, Austrian Burgerliches Gesetzbuch, 1811, German Burgerliches Gesetzbuch,
1896, Japanese Minpo, 1896, Swiss Zivilgesetzbuch, 1907, Italian Codice Civile, 1942.
Civil law is largely classified and structured and contains a great number of general rules
and principles, often lacking details. One of the basic characteristics of the civil law is that the
courts main task is to apply and interpret the law contained in a code, or a statute to case facts.
The assumption is that the code regulates all cases that could occur in practice, and when certain
cases are not regulated by the code, the courts should apply some of the general principles used
to fill the gaps such as Italian Civil Code art 12 para 2 provides that "if a controversy cannot be
decided by a precise provision, consideration is given to provisions that regulate similar cases or
analogous matters; if the case still remains in doubt, it is decided according to the general
principles of the legal order of the State."
Common law has its development rather in a more researched manner. The legal system
in England and Wales could not rely only on customs (both general and local). Even in Anglo
Saxon times there were local courts which decided disputes, but it was not until after the Norman
conquest in 1066 that a more organised system of courts emerged. This was because the Norman
kings realised that control of the country would be easier if they controlled, among other things,
the legal system. The first Norman king, William the Conqueror, set up the Curia Regis (the
King’s Court) and appointed his own judges. The nobles who had a dispute were encouraged to
1
K Zweigert & H Kotz, Introduction To Comparative Law (3 ed, Clarendon Press, Oxford 1998); R B Schlesinger et al,
Comparative Law (Mineola, New York, 1998), pg 271
apply to have the king (or his judges) decide the matter As well as this central court, the judges
were sent to major towns to decide any important cases. This meant that judges travelled from
London all round the country that was under the control of the king. In the time of Henry II
(1154–89) these tours became more regular and Henry divided up the country into ‘circuits’ or
areas for the judges to visit. Initially the judges would use the local customs or the old Anglo-
Saxon laws to decide cases, but over a period of time it is believed that the judges on their return
to Westminster in London would discuss the laws or customs they had used, and the decisions
they had made, with each other. Gradually, the judges selected the best customs and these were
then used by all the judges throughout the country. This had the effect that the law became
uniform or ‘common’ through the whole country, and it is from here that the phrase ‘common
law’ seems to have developed.
Common Law has been adopted in the USA, Canada, Australia, New Zealand and other
countries of the British Commonwealth such as Pakistan & India. The most obvious distinction
between civil law and common law systems is a that civil law system is a codified system,
whereas the common law is not created by means of legislation but is based mainly on case
law. The principle is that earlier judicial decisions, usually of the higher courts, made in a similar
case, should be followed in the subsequent cases, i.e. that precedents should be respected. This
principle is known as stare decisis and has never been legislated but is regarded as binding by the
courts, which can even decide to modify it. The claim that common law is created by the case
law is only partly true, as the common law is based in large part on statutes, which the judges are
supposed to apply and interpret in much the same way as the judges in civil law.
2
For example, article 1131 of the French Civil Code provides that "an agreement without cause or one based on a
false or an illicit cause cannot have any effect."