Common Law or Civil Law – A Comparison.

By Ahlam Arif

2021-05-16

Development of the Systems

The common law and the civil law systems are two very distinct legal systems. To understand the complex nature of the two, it is necessary to consider its historical roots that have now been developed over the years leading to its incorporation across the world. The common law system was established in England stemming from disputes in local areas each applying different laws and remedies for resolution. As the laws lacked consistency among each region, a central court was set up that would apply laws common to all. Over time, equitable remedies were established and its exercise remained at the discretion of the judges to determine a suitable outcome dependent on the facts of the case. Equity supplements common law by creating a legal system that is pragmatic through its flexibility.

On the other hand, civil law or jus civile was established by the Romans. The law at that time was narrower and specific to a few circumstances that caused a challenge in its application. This resulted in a change that was brought by liberal jurists who sought to clarify the law. They established rules and guidelines that would regulate the affairs of its people as general principles of law. As their opinions on a new form of the law were given wider recognition, this was later consolidated and codified. The civil law system primarily relies on codes that have now been adopted by many, forming a part of their constitution and developed over time. As the legal principles are generic, these also aid in the development of the law through its adaptability to the changing societal norms.

Application of the Law

In a common law jurisdiction, the primary source of law that the courts rely on are judicial precedents or case laws. These are judge-made laws created through their decisions on a case establishing binding legal principles. The courts are bound to interpret the relevant case laws to ensure consistency in their application of the law where similarities are found. The judges in common law systems play a significant and active role in the application and creation of the law. As the prerogative lies with the courts to establish principles dependent on the cases, it brings about a wider scope of development of the law through the opinions and comments of judges.

Through their discretion, the judges may overrule, distinguish or deviate from the precedents set from previous decisions where inconsistency or ambiguity is found to hinder a fair outcome. As the principles of the decisions are binding, the evolution of the law has been greatly notable in the common law jurisdiction. Despite the legislations regulating specific areas, the judges are required to strictly interpret the statutes, which leaves a greater degree of flexibility in its application of the established judicial precedents. It brings about significant development in the progression of the law with its adaptability.

Whereas in civil law jurisdiction, the rules and core principles are codified as statutes that take precedence over any other source of law by the courts. Through the primacy of the codified laws, the judges also rely on sources like the parliamentary discussions, draftsmen’s comments, and the essential preparatory works on the legislation for its interpretation. Therefore, as the laws are strictly defined, the judicial creativity in establishing rules or reliable precedents are limited in civil law systems. Unlike common law, judges are also limited in their capacity to create laws and act as mere investigators who apply the legislation to the facts.

Despite the lack of judicial powers to create laws, the codification of the general principles as a primary source provides the courts with the ability to liberally interpret legislations. In some instances, the courts can rely on previous judgments, but these are only extracted for the purpose of understanding the codified body of law and for its application. This, in turn, enables the judges to be much more flexible in their approach to decision-making through a wider scope of interpretation.

Conclusion

The two systems share similarities in their objective of achieving consistency in the application of the law and ensuring a sufficient degree of flexibility in the development of these legal principles. The key difference in the practise of the two legal systems vests in its primary source of law. Civil law relies on codified statutes to decide a case, while the common law jurisdiction primarily considers judicial precedents. Furthermore, the extent of judicial powers remains substantially different as common law leaves a wide discretion upon the judges to establish precedents through creative decision-making.  However, despite the sources and the judicial powers being inherently distinctive, the outcome nevertheless is similar as the objective of a fair outcome is reached through wide interpretation of the law.