Common Law vs Civil Law
Common Law vs Civil Law
1. Definition and Origin
| System | Definition | Origin |
|---|---|---|
| Common Law | Law developed through judicial decisions (case law) and precedents. | Originated in England after the Norman Conquest (1066). |
| Civil Law | Law based on a comprehensive written code or statutes, with less emphasis on judicial decisions. | Originated from Roman law, later developed in Continental Europe. |
2. Nature and Sources of Law
| Aspect | Common Law | Civil Law |
|---|---|---|
| Primary Source of Law | Judicial precedents (case law); courts interpret and create law. | Codified statutes and legal codes; judges apply and interpret codes. |
| Role of Judges | Judges have an active role in developing law through decisions. | Judges apply the written codes; limited role in creating law. |
| Flexibility | Highly flexible; law evolves through new judgments. | More rigid; changes require legislative amendments. |
| Importance of Precedent | Binding precedent (stare decisis) must be followed by lower courts. | Precedent is persuasive but not binding. |
3. Legal Procedure
| Aspect | Common Law | Civil Law |
|---|---|---|
| Role of Judges | Judges are arbiters and interpreters; trials often involve adversarial proceedings between parties. | Judges play an investigative role; inquisitorial system where judges guide the process. |
| Trial Procedures | Emphasis on oral arguments, witness examination, and jury trials (in some cases). | More emphasis on written submissions and dossier; jury trials are rare or absent. |
4. Examples of Common Law and Civil Law Systems
Common Law Countries: England, United States, Canada, Australia, India.
Civil Law Countries: France, Germany, Japan, Russia.
5. Case Law Illustrations
Common Law Example: Donoghue v. Stevenson (1932)
Facts: The plaintiff fell ill after drinking ginger beer containing a snail.
Held: The court established the modern law of negligence, creating a duty of care principle.
Significance: Illustrates how judges create and evolve law through judicial decisions and precedents.
Civil Law Example: French Civil Code Application
In civil law jurisdictions, judges rely on codified principles rather than precedent.
For instance, a case involving contract breach would be decided by referring to specific provisions in the civil code, with less emphasis on past judicial decisions.
6. Advantages and Disadvantages
| Aspect | Common Law | Civil Law |
|---|---|---|
| Advantages | Flexible, adaptable, and evolves with society; rich jurisprudence guides future cases. | Clear, accessible written laws; uniformity and predictability. |
| Disadvantages | Can be complex due to volume of case law; sometimes inconsistent. | Less flexible; slow to adapt to new situations without legislative action. |
7. Summary Table
| Feature | Common Law | Civil Law |
|---|---|---|
| Source of Law | Judicial precedents (case law) | Codified statutes and legal codes |
| Role of Judges | Law-makers through decisions | Law-appliers interpreting codes |
| Legal Procedure | Adversarial system with oral trials | Inquisitorial system with written procedures |
| Precedent | Binding and mandatory | Persuasive but not binding |
| Flexibility | High; law evolves with judgments | Low; depends on legislative amendments |
| Examples | Donoghue v. Stevenson (1932) | Cases decided primarily on statutory codes |
Conclusion
Common Law relies heavily on judicial decisions and precedents, making it flexible and adaptable, with judges playing a key role in law-making. Civil Law depends on comprehensive written codes, with judges applying the law rather than creating it, offering clarity and uniformity but less flexibility.
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