Similarities and Dissimilarities between Common Law and Civil Law Legal Systems

Introduction:

Common law and civil law are two distinct legal traditions that have evolved in different parts of the world. Understanding their similarities and dissimilarities is essential for law students to grasp the complexities of legal systems globally. This article examines the nature, role of judges, countries of application, reliance on precedent, and jury opinions in both common law and civil law legal systems.

  

Similarities and Dissimilarities

I. Nature:

Civil Law:

• Originating in Europe
• civil law is characterized by the codification of core principles into a referable system.
• Civil law legal systems rely primarily on written codes that serve as the primary source of law.

Common Law:

• Common law legal systems, prevalent in countries such as the United States, England, and Australia, are based on case law developed by judges through their decisions.
•  Common law is less reliant on codified statutes and places more emphasis on precedent and judicial interpretation.

II. Role of Judges:

Civil Law:

• - In civil law systems, judges play the role of chief investigators.

• - Their primary responsibility is to establish the facts of the case and apply the provisions of the applicable code.

• - Judges in civil law systems are less involved in lawmaking and tend to have a passive and technical role.

Common Law:

• - In common law systems, judges have an active and creative role in lawmaking.

• - They make rulings, set precedents, and act as referees between lawyers.

- 

• Judges in common law systems often inquire extensively into matters before them and rely on arguments presented by the parties involved.

III. Countries:

Civil Law:

• - Civil law legal systems are prevalent in countries such as Spain, China, Japan, Germany, most African nations, and most of Europe.

Common Law:

• - Common law legal systems are found in the United States, England, Australia, Canada, and India.

IV. Constitution:

Civil Law:

• - Civil law legal systems typically have a written constitution.

• - The constitution serves as the supreme law of the land and provides a framework for the legal system.

Common Law:

• Common law legal systems may or may not have a written constitution.

•  In countries like the United Kingdom, where the constitution is unwritten, 

• the legal system relies on statutes, case law, and constitutional conventions.

V. Reliance on Precedent:

 Civil Law:

• - Civil law legal systems do not place significant reliance on precedents or case law.

- 

• Courts in civil law systems primarily interpret and apply statutes and codes rather than referring to previous judicial decisions.

Common Law:

• - Common law legal systems heavily rely on precedents and case law.

•  Courts in common law systems consider previous decisions made by higher courts as binding or persuasive authorities.

VI. Jury Opinion:

 Civil Law:

• In civil law systems, juries are composed of members of judicial panels.

• Their legal reasoning tends to be deductive, focusing on applying the law to the facts of the case.

Common Law:

•  Common law systems typically involve juries comprised solely of laypersons (grand and petit juries).

•  These juries do not include judges, and their legal reasoning tends to be inductive, considering the facts of the case to reach a decision.

Conclusion:

Understanding the similarities and dissimilarities between common law and civil law legal systems is crucial for law students. While both systems seek to provide justice and maintain the rule of law, they differ in their origins, reliance on precedents, the role of judges, and the countries in which they are practiced. By comprehending the nuances of these legal traditions, law students can develop a broader understanding of the complexities of legal systems worldwide.