Common law v. Civil law countries

In nations with a civil law system, legislation, statutes, or codes are the primary sources of law, and courts are required to adhere to these statutes. In common law nations, while courts are also required to follow statutes, they also have the authority to establish new law, known as common law or case law, through their rulings in particular cases. Additionally, they possess the power to declare a statute unconstitutional.

The legal systems of countries all over the world are divided into two categories: common law systems and civil law systems. There are around 150 nations with predominantly civil law systems, compared to approximately 80 countries with common law systems.

The common law—so named because it was “common” to all the king’s courts across England—originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.

The legal system of civil law is also known as neo-Roman law, Romano-Germanic law or Continental law. The term “civil law” is derived from the late imperial Latin term jus civile, meaning “citizens’ law”, which distinguished the legal system from the laws governing conquered peoples (jus gentium) and was also the title of the Justinian Code’s compilation, Corpus Juris Civilis. Nonetheless, civil law practitioners typically refer to their legal system broadly as jus commune.

In law, common law, also known as judicial precedent, judge-made law, or case law, is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.

Common Law Countries

Common law system

The laws that govern a case are founded on both legal precedents established by judges and statutory laws established by legislators. In an adversarial system, the judge acts as a neutral referee between competing parties in a dispute. The facts may be determined by a jury but the law will be applied by a judge.

Prosecutors and defense counsel play an active role, while victims serve as witnesses and may have rights to information and limited involvement as victims. However, victims are not a party in criminal prosecutions.

Countries following the common law system

Countries that use the common law system are usually former British colonies or protectorates –

The United States

The legal system in the United States is primarily based on the common law tradition, which heavily relies on court precedents in formal adjudications. Even when a statute is in question, previous judicial decisions play a significant role in the court’s resolution of the matter at hand.

However, Louisiana follows a civil law system due to its French heritage.

England

The legal system in England known as common law is derived from the subject matter of past cases, as well as the law created by judges. Its origins date back to the reign of King Henry II (1154-1189) when a multitude of local customary rules were replaced by new national laws that were applicable to all and hence were considered “common to all.”

India

The judicial system in India is based on the common law system, which was inherited from British colonial rule and relies on documented court precedents. India’s court system comprises the Supreme Court of India, High Courts, and subordinate courts at the district, municipal, and village levels.

Canada

Civil Law Countries

Civil law system

There is usually a written Constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law, and constitutional law) enshrining basic rights and duties; administrative law, on the other hand, is usually less codified, and administrative court judges behave more like common law judges.

Legislative enactments are the ones that are regarded as universally binding. In civil, criminal, and commercial courts, there is a limited opportunity for judge-made legislation but judges in practice prefer to follow earlier judicial judgments. Constitutional and administrative courts have the power to invalidate laws and regulations, and their rulings are binding on all.

There are generally distinct constitutional, administrative, and civil court systems that pronounce on the compatibility of legislation and administrative acts and they also interpret the underlying codes.

Less freedom of contract, numerous conditions are implied by law in a contract and parties are unable to negotiate out of some obligations.

Countries following the civil law system

Civil law countries are generally former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, covering much of Central and South America. The majority of Central and Eastern European and East Asian nations adopt a civil law system as well –

China

The legal system of the People’s Republic of China (“PRC”) relies heavily on civil law, which is responsible for governing the personal and property relationships among equal parties. Civil law serves as the cornerstone for many specific laws and regulations in the economic sectors, including various economic regulations and special enactments.

Japan

Japan’s legal system is characterized as a civil law system based on codified law. The legislative heart of the system is formed by the Constitution and the five primary Codes: civil, civil procedure, criminal, criminal procedure, and commercial.

Germany

Germany’s federal Constitution is known as the Basic Law, which is drafted and codified. The federal states also have their own written and codified Constitutions. Although, they are of secondary importance in practice because federal law supersedes state law.

France

The legal system of France follows the civil law tradition, where the legislation is established in various codes and holds priority over case law. In civil law systems, the principle of stare decisis is not applied, and every case is evaluated on an individual basis, considering its relation to the codified law and the judge’s interpretation of that legislation. Consequently, two instances dealing with the same matter may arrive at different conclusions.