Civil Law vs.

Common Law

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.
 Civil law Common law

1. Legal System Legal system Legal system

originating in characterized by
Europe whose most case law, which is
prevalent feature is
that its core law developed by
principles are judges through
codified into a decisions of
referable system courts and
which serves as the similar tribunals.
primary source of
law.
 Civil law Common law
2. Role of judges Chief investigator; Makes rulings; sets
makes rulings, precedent; referee
usually non-binding between lawyers.
to 3rd parties. In a Judges decide
civil law system, the matters of law and,
judge’s role is to where a jury is
establish the facts of absent, they also
the case and to find facts. Most
apply the provisions judges rarely inquire
of the applicable extensively into
code. matters before
them, instead
relying on
arguments
presented by the
parties
 Civil law
3. Countries Spain, China, Japan,
Germany, most African
nations, all South American
nations (except Guyana),
most of Europe
4. Constitution always
5. Jury opinion 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.
Common law
United States, England,
Australia, Canada, India
not always
Juries are comprised only of
laypersons — never judges
and, in practice, only rarely
lawyers — and are rarely
employed to decide non-
criminal matters outside the
United States. Their function
is to weigh evidence
presented to them and to
find facts.
 Civil law
7. 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.
8. 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
recognized]
Common 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
 Civil law
9. Type of argument and Inquisitorial. Judges, not
role of lawyers lawyers, ask questions and
demand evidence. Lawyers
present arguments based on
the evidence the court finds.
10. 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 usurped.
Common 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.
 Civil Law Common Law

11. 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

12. Origins Historians believe that the Common law dates to

Romans developed civil law
around 600 C.E. (“common
era = A.D.), 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.
early English monarchy
when courts began
collecting and publishing
legal decisions. Later,
those published decisions
were used as the basis to
decide similar cases.