Common Law and Civil Law: Comparison

Abstract

The paper compares elements of civil and common law. It gives a brief history of each of the legal systems in an attempt to explain their background. The origin of civil law is traced back from the Roman Empire while common law derives its origins from England. Areas of differences between the legal systems are established at various levels such as the role of the legislator, the procedure applied, and the binding law of precedent prevalent in both legal systems.

The paper also compares the diverse approach of the two legal systems towards various legal concepts and doctrines such as their approach towards contract law and the doctrine of good faith. We also look at different areas under which the two legal systems are likely to merge and the factors hindering the same and conclude that through merging the systems can attain higher levels of importance.

Introduction

Ever since the Paris conference that was held in 1990, comparative lawyers have geared their efforts towards the classification of different legal systems of the world in ‘law families’.¹The civil and common law families are the most popular law families among the Western society. Common law origins can be traced back to England and Wales from where it spread to its former colonies. Civil law on the other hand derives its roots from the rest of the European continent and its former colonies.² Traditionally, the common law was perceived as spreading selectively in the European continent specifically in England.

However, it is presently emerging more clearly that England was not entirely isolated in its adoption of common law and over the years it has been substantially influenced by the legal systems of the other parts of Europe and incorporates in its legal system some traces of the Roman law. We can therefore conclude that common law and civil law are both emanations of a western legal tradition.³The civil law system is incorporated in most of Eastern and Western Europe, Scandinavia, Latin America and Russian legal systems. Mixed cases of civil law have been found in most parts of Africa and the Chinese legal system.⁴

Origin of Civil Law

Civil law can be defined differently depending on the context. The commonly used definition refers to laws affecting private rights such as the law of contract, family law, and the law of torts. In this context, however, Civil law refers to the modern legal system that has its origin in ancient Rome⁵. The origin of civil law dates back hundreds of years B.C. where laws were curved into bronze and marble tablets that formed the basis of thousands of law books that were written later and contained rules and penalties created by generations of empires.⁶ By 529 A.D. Roman law was rewritten in a ceremony presided over by (Emperor) Justinian.

The code organized the legal rules into a logical system that could be learned, understood and applied practically.⁷Rome was later invaded by the Germanic hordes which led to the disappearance of the Justinian code. However, around 1100 AD, copies of the lost Justinian code were recovered and legal scholars took great interest in it due to its comprehensiveness and systematic organization. It was taught in Italian universities for many years.⁸

Centuries later, Emperor Napoleon also adopted the Roman system and used its principles to consolidate the French law into the Napoleon code.⁹ This code was translated to almost every language and gained popularity throughout Europe and around the world. In the 1900s, Germans developed a uniform code based on the principles of the Roman law which led to the enactment of the German civil code which continues to be used through the 20^th century with constant amendments. The German code has been influential in the development of civil law in the present society. It has influenced legal systems in China, Japan, and Portugal among other regions in the world.¹⁰ Civil law has dominated most legal systems of the world today.

Origin of Common Law

The common law systems originated from the Normandy region of France. The British legal system was not influenced by Roman law as it was on the verge of branching off to its own legal track. It was largely governed by the Anglo-Saxon law since the fall of the Roman Empire until the Norman Conquest in 1066.¹¹ In the same year, the last king of Saxon was murdered and it was at this point that the English law took a different direction altogether. William the conqueror introduced feudalism, a political and economic system where he distributed the land to his closest followers who further distributed it to sub tenants.

Possession of land was acquired under certain rights and in return of certain specified duties owed to the tenants.¹² However, European feudalism is no longer in existence but the legal system that William and the Kings developed are still significantly influential to the England legal system. The development of trial by jury led to the demise of the Anglo-Saxon courts.

Judges started documenting their decisions on various cases and shared them with their fellow judges such that judges could justify their rulings by citing previously decided cases of similar nature.¹³ This led to the beginning the common law system which is governed by the doctrine of stare decisis which implies that the courts should let a decision to stand unless under situations where it is overruled by higher authority.¹⁴ The common law spread from the British Empire and is practiced today in Australia, Canada, Ghana, Great Britain, United states, among other countries. Many civil law countries are also incorporating the common law systems in their legal systems.¹⁵

The common and civil law are the dominating legal systems among the Western countries. Their ultimate difference lies on the definition of the two legal systems. While common law is the body of law that develops over time through judges ruling over cases based on previous rulings, otherwise referred to as judicial precedent rather than statutes or the constitution, the civil law refers to a legal system whereby the law governing a particular society is derived from the civil authority or the state.¹⁶ Civil law is written law that does not relate to any specific present dispute but was written to anticipate future dispute and provide guidance on how to address these controversies in case they occurred in future¹⁷

The role of the legislator differs in both legal systems. In civil law, it is based on the theory of separation of powers. In common law however, the courts are expected to create the law.¹⁸ The two legal systems approach to the legal process also differs significantly. The civil law’s principles are found in codes and statutes, which are prevalent in case rulings while in common law system the laws are a creation of judicial decisions.¹⁹

The binding force of precedent is different in both legal systems. Courts in civil law systems decide on cases through application of statutes and interpretation of legal norms while the common law courts decide disputes between parties as well as providing guidance regarding the occurrence of such disputes in the future. Thus, the interpretation of a particular case under common law is binding on lower courts while the case laws under civil law systems lack this binding force.²⁰

Since the doctrine of stare decisis is not applicable in civil law cases, it is common for these courts to come up with different rulings on similar cases, which hardly occur under common law. In civil law therefore, the courts do not make the law but merely interpret and apply the existing law. However, in practical cases, the higher courts in civil cases have substantial influence on lower courts as the judges in these lower courts will try a much as possible to avoid the risk of making a decision that would be reversed by the higher courts as it may affect their careers. Hence, in practice the courts takes account of prior decision even though theoretically the civil law systems have no binding power.²¹

The two legal systems are characterized by diverse legal concepts that are highly differentiated. In common law, a contract lacks binding effect unless it is supported by consideration while in civil law; a contract exists only with a lawful cause.²² In common law therefore, a contract must be supported by something of measurable value while in civil law a contract is justified only if the party undertakes the responsibility to fulfil the contractual obligations.

Civil law recognizes transferability of contractual rights to the third parties (Stipulatio alteri) while common law does not.²³ Common law applies the doctrine of privity of contract, which prevents contracting parties from imposing obligations or giving rights to parties other than the contracting parties. However, general principles on liability for breach of contract are based on similar bases in both common and civil legal systems.²⁴

The only difference occurs in the recovery of damages whereby the requirement of fault is necessary in civil cases and not required in common law. Strict liability for performance under the common law has been adjusted to accommodate events of impossibilities as well as change in circumstances.²⁵

The civil law is subjected to scientific study and formulation, which is lacking in common law. The civil law is comprehensively and systematically codified. The common law on the other hand creates room for loose ends existence of which appear not to alarm the common lawyer²⁶The civil law may also contain few loose ends but civilians always attempt to remedy the defect.²⁷

The procedures applied in both legal systems are also varied. Common law procedure is commonly referred to as ‘adversarial’ where the judge acts as a neutral arbitrator between the parties in dispute. The disputing parties lead the proceedings and the judge passively participates without undertaking any independent investigation in the process. His ultimate role is to oversee the proceedings, establish the ultimate truth without directly interrogating the parties in dispute. He also ensures that the necessary procedure is followed and respected. At the end of the proceedings, the judge makes a ruling depending on the most convincing and competing presentation.²⁸

In civil law, the procedure is referred to as ‘inquisitorial’ since the judge examines witnesses and the disputing parties are not allowed to engage in cross-examination. The judge takes up an active role and his court undertakes the responsibility of clarifying issues as well as assisting parties in presenting their arguments. The judge in the civil law system is expected to make decision by establishing the definite truth and consequently making a just decision. The civil law utilizes the doctrine of Jura novit Curia which requires the court to know the law and the parties in dispute are not required to plead the law.²⁹ This differs from Common law where the law has to be pleaded.

In common law the procedure sets off with a filed complaint which starts off the procedure of investigations with the aim of establishing the truth while in civil cases the complaint determines the orientation of the case.³⁰ Civil law trials involve a number of hearings and involve various written communications between the parties involved in the trial. On the other hand, civil law places less emphasis on oral communication and uphold written communication.

The method of gathering evidence in both cases also differs. The pre trial search for evidence in common law requires the parties to produce all documents and information which is relevant to the case in the absence of court intervention. Through discovery of documents the parties can gain access to information from the other parties hence assist them in preparing for the trial. Civil law does make provision for pre trial discovery. The parties in dispute are not obligated to present documents voluntarily to the other party since the evidence is meant to prove legal or factual arguments.³¹

There are also significant differences in treatment of witness statements in both systems. A basic feature of common law procedure is cross examination of witnesses to allow thorough examination of the case since in this legal system, oral evidence is given considerable weight relative to written evidence.³² In the civil law legal system, written evidence has more emphasis than oral evidence. In case written evidence is contradicted by oral evidence in civil cases, then the written evidence will prevail. Hence cross examination of witnesses under civil cases is uncommon unless under the sole discretion of the judge.³³

The doctrine of good faith is much emphasized in civil law than in common law. This can be ascribed to the influence of canon law (on civil law) as well as commercial practice (on common law). Hence if in common law a decision maker had to make a choice between certainty and justice, certainty would prevail due to the commercial orientation of the process.³⁴ Civil law on the contrary is concerned with the moral evaluation of the behaviour of the parties and the doctrine of good faith takes the form of a general code provision.³⁵

With the exception of United States, most common law jurisdiction does not employ the doctrine of good faith. If we conceptualize this doctrine as a mechanism which is “used to moderate the effects of unethical behaviour or ensure justice and fairness by requiring contracting parties to observe certain behavioural norms;”³⁶ we can conclude that the idea presents itself in doctrines such as duress, undue influence, and misrepresentation or in specific statutes such as Unfair contract terms act without which parties are rendered free to pursue their strict legal acts regardless of their motive.³⁷ It is generally considered thorny to imply a term under the common law than it is to find a good faith obligation under a general principle.³⁸

However, the common law may often achieve the same results as civil law after judicial development of general principles but the presence of the general doctrine provides judges with a more flexible standard since the doctrine stands ready to meet unforeseen contingencies.³⁹

A common law system acknowledges medical privileges achieved via privilege statutes drafted for situations requiring the physician testimony in judicial proceedings. The statute comprehensively describes the scope and the limitations of the medical privilege.⁴⁰

While in some civil law systems countries like Germany and France, the legal implication of the medical privileges raises issues as to whether or not the physician testimony in court maintains medical confidentiality breach of which amounts to a criminal offence. However, both systems generally achieve the same results when it comes to protection of medical confidentiality.⁴¹ Common law also contains rules that restrict evidence of admission. The civil procedure also provide guidelines regarding what may be introduced as evidence in a court proceeding. The civil law restricts the evidence while common law allows any evidence but evaluates it depending on the weight accorded to it.⁴²

In the nineteenth century, it was possible to believe in the notion that common law was crude and barbarous relative to the civil law. Increased cultural interaction between these two systems over the years has however revealed that the Anglo-American is not less sensitive or unjust compared to the civil law system.⁴³ The civil lawyers have recognized that societies are able to reach advanced levels of legal development without acknowledging any technical differences between private and public law.⁴⁴(Henry, 2010)

Can the two legal systems eventually merge?

The differences that once appeared significant between common and civil law are continually becoming blurred. The two systems have started harmonizing in terms of the sources of law, procedures and drafting techniques as well as judicial views.⁴⁵ Evidence can be derived from the fact that since the 19^th century, the common and civil law countries have increased their reliance on legislation to compel law reforms which has resulted in the rise of administrative law.⁴⁶

Common law judges are also increasingly acknowledging that they should start making the law other than blindly adhering to precedent. France evidently demonstrates a change in attitude from previously applying the law by referencing statutes and codes to establishment of lines of judicial precedent to guide courts and law practitioners.⁴⁷ Globalization is also a compelling factor to harmonization of the legal systems. Increased international contact especially through international trade requires countries with similar economic social and political values to integrate. This may eventually lead to emergence of international common law.

For example the European Union which has its own parliament and courts.⁴⁸ However, these moves have been criticized on the basis of the fact that it ignores basic legal structures, actors and processes. The two legal systems have been portrayed as reflecting two modes of experiencing the world and cannot be reconciled easily⁴⁹and while they may appear to have similar rules and concepts and outcomes, the common law presents barriers that prevent other legal systems to interact with it at deeper levels.

Conclusion

Examination of common law and civil law systems reveals that there exist differences and similarities between the two systems. Their different legal cultures concepts and institutions converge at the point of almost similar outcomes in the legal proceedings. Due to contemporary pressure facing the legal sector and the world at large, these two systems are continually integrating at various levels and consequently reaching greater levels importance.

Bibliography

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Hazelbaker, J., Differences between common law and civil law, 2010, Helium Inc. Web.

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Footnotes

1. A. Dope, Introduction into legal English for Dutch students, 2009, Kluwer publishers, Pg 1.
2. A. Dope.
3. R. Zimmermann, D.P. Visser, Southern Cross: Civil law and common law in South Africa,1996, UK: Oxford University Press, pg 2.
4. R. Schaffer, F. Agusti & B. Earle, International business law and its environments, 2008, Cengage learning, pg 77.
5. R. Schaffer, F. Agusti & B. Earle, pg 77.
6. R. Schaffer, F. Agusti & B. Earle.
7. R. Schaffer, F. Agusti & B. Earle.
8. R. Schaffer, F. Agusti & B. Earle.
9. R. Schaffer, F. Agusti & B. Earle, pg 78.
10. R. Schaffer, F. Agusti & B. Earle.
11. R. Schaffer, F. Agusti & B. Earle, pg 78.
12. R. Schaffer, F. Agusti & B. Earle.
13. R. Schaffer, F. Agusti & B. Earle.
14. R. Schaffer, F. Agusti & B. Earle.
15. R. Schaffer, F. Agusti & B. Earle, pg 78.
16. J. Hazelbaker, Differences between common law and civil law, Helium Inc, pg 6.
17. J. Hazelbaker.
18. C. Pejovic, Civil law and common law: Two different paths leading to the same goal, Google documents, 2009,pg 820.
19. C. Pejovic, pg 820.
20. C. Pejovic.
21. C. Pejovic, pg 822.
22. C. Pejovic, pg 824.
23. C. Pejovic, pg 826.
24. C. Pejovic.
25. C. Pejovic, pg 827.
26. H. J. Liebesny, The law of near and Middle East: Readings, materials & cases, Sunny press, 1975, pg 53.
27. H. J. Liebesny, pg 53.
28. C. Pejovic, pg 829.
29. C. Pejovic, pg 831.
30. C. Pejovic.
31. C. Pejovic, pg 833.
32. C. Pejovic.
33. C. Pejovic, pg 834.
34. M. Maggi, Review on the convention on contracts for the international sale of goods(CISG), 2004 Netherlands: Kluwer law international, pg 33.
35. M. Maggi, pg 33.
36. M. Maggi.
37. M. Maggi, pg 33.
38. M. Maggi.
39. M. Maggi.
40. S. Michalowski, Medical confidentiality and crime, Ashgate publishing Ltd, 2003, pg 283.
41. S. Michalowski, pg 283.
42. C. Pejovic, pg 833.
43. J. H. Merryman, R. P. Perdomo, The civil law tradition: an introduction to legal systems of Europe and Latin America, 2007, California: Stanford University press, pg. 95.
44. J. H. Merryman, R. P. Perdomo.
45. D. Nestorovska, Influences of the Roman law and civil law on common law, 2005, pg 85.
46. D. Nestorovska.
47. D. Nestorovska, pg 89.
48. D. Nestorovska, pg 85.
49. D. Nestorovska, pg 86.