Common Law and Civil Law System

Introduction

Worldwide legal systems can be generally divided into two groups: Common Law and Civil Law. These frameworks serve as the cornerstone of legal systems in many nations and have a big impact on the creation, interpretation, and application of laws. These systems, which originate from various historical periods and philosophical viewpoints, provide the basis of legal systems in many different jurisdictions throughout the world. Both systems are coming more into contact in today’s increasingly globalized world. Gaining an understanding of the salient features and historical context of various legal systems is essential to understanding the global legal environment.

Origin

Civil law emerged in continental Europe beginning in the Middle Ages and is based on codified law drawn from national legislation and custom as well as ancient Roman law. Ius civile, the Latin phrase for the law governing all Roman cives, or citizens, is where the term “civil law” originates. The enormous collection of Roman law that Emperor Justinian ordered in the sixth century CE serves as both its model and source. Within decades of its production, this compilation vanished from the West, but it was later found and used as the foundation for legal education in eleventh-century Italy. By the sixteenth century, it had taken on the name Corpus iuris civili.
Common law has its origins in England. It started in the Middle Ages when monarchs appointed judges to hear cases and render judgments, and it gradually evolved over several centuries. These judges made numerous journeys across the nation and their rulings were documented and referenced in cases with comparable facts. Based on these precedents, a set of laws and regulations known as common law evolved throughout time. Medieval rulers started to build new systems of royal authority and justice after the Norman Conquest in 1066. The writs, or royal orders, system that the monarch instituted allowed for the operation of new legal actions, each of which offered a particular remedy for a particular wrong. In these situations, the king would need to be directly contacted for a further plea to justice.

The English king’s power was permanently checked by the Parliament, which also asserted its right to define common law and declare other laws, such as canon law and civil ancillary to it, to be subordinate to it, throughout the 17th century.

Statues

 Civil law statutes provide a very organized and comprehensive summary of the law, and they heavily rely on definitions and classifications.

Common law statutes often cover just a small part of the law, but they do so in great detail. They are comprehensive, but not in the sense that they cover every legal matter; rather, they offer in-depth guidelines specific to a given field. Common law regimes may have highly technical statutes, making it challenging to comprehend the law without consulting additional resources.

Type of system

Civil law follows an inquisitorial system that has a more judge-driven approach. The judge is more involved in overseeing the processes, conducting witness interviews, and looking into the matter. He assumes the duty of gathering information and making sure the matter is fairly and thoroughly investigated. The plaintiff normally has the burden of establishing their case by a preponderance of the evidence in civil trials.

The adversarial system, which pits two competing parties against a moderating judge, is the norm in common law. The attorneys representing each party submit the arguments and case to the judge. The presumption of innocence is a fundamental tenet of the adversarial system, especially in criminal proceedings.

Roles of judges

 In civil law systems, judges play a primarily interpretive position, with limited opportunity for personal judgment due to doctrinal direction.

In common law systems, judges play a pivotal role, in molding and changing the law through case-by-case development. Given its inherent flexibility and efficiency, this system enables the creation of a comprehensive rules to address emerging legal fields as well as the prompt and pertinent reaction to the shifting needs of society.

Doctrine of precedents

 In civil law systems, precedent does not play the same role as it does in common law systems. Rather, the formation and application of legal norms under civil law is based on a distinct set of concepts and sources, such as legislation, codes, legal doctrines, etc.

Precedent, or earlier court rulings in related instances, is the foundation of common law in many cases.

Rule of stare decisis

Civil law jurisdictions do not recognize the significance of prior decisions as the application of stare decisis necessitates a detailed analysis of often complex decisions in order to determine whether or not an earlier case must be followed.

The common law system is based on the principles of stare decisis, which require lower courts to abide by the rulings of courts higher up the judicial hierarchy. This prevents a multitude of contradictory laws from emerging in any one area.

Conclusion

 In conclusion, legal procedures and guiding principles are greatly impacted by the decision to choose between the Common Law and Civil Law systems. It is imperative that legal practitioners, scholars, and anyone else interested in gaining a more comprehensive understanding of the global legal landscape recognize the differences between these two systems. The coexistence of civil law and common law systems promotes a global legal environment where states may come into contact with and engage with divergent legal traditions as the globe grows more linked. When working in such situations, legal professionals need to be able to handle the opportunities and problems that come with these distinctions. They also need to create a deeper awareness of the strengths and limitations that come with each system.

References

• Margaret Fordham, “Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia”, 1 The Asian Journal of Comparative Law
• https://www.law.berkeley.edu/wp-content/uploads/2017/11/CommonLawCivilLawTraditions.pdf