Common Law vs. Civil Law
There are nearly 200 nations in the world, each with their own distinct legal system based on one of the four major legal systems: common law, civil law, socialist law, and religious law. The majority of countries today follow either common law or civil law. Here in the United States we practice common law, as opposed to countries like France and Germany, which practice civil law. There are several differences between these two legal systems, however, common law in the United States would not be what it is today if it weren’t for traditions of civil law. Furthermore, the traditions of civil law are reflected in many regions of the United States due to their European roots.
Common law, also referred to as Anglo-American law, is utilized in countries whose prominent language is English. Common law developed in England under an adversarial system from judicial decisions that were based in tradition, custom, and precedent. Before the Norman Conquest in 1066, English residents were governed by undocumented local customs that varied within each community, and were enforced in an often arbitrary fashion. After the Norman Conquest, medieval kings began to consolidate power and create new institutions of royal authority and justice. New forms of legal action established by the crown functioned through a system of royal orders known as “writs”. These orders provided certain solutions for a certain types of wrong doing.
In addition, common law forms a major part of the law of many nations, especially for those with a history as British, territories or colonies. In common law countries, court cases are initiated where one party accuses another of having violated the law. The judge’s role is very limited, simply to advise the adversaries and the jury of the law. Primarily, the lawyers are in charge of the case.
On the other hand, civil law is the oldest family of law and dates back to the Roman Empire. The civil law tradition developed in continental Europe and was applied in the colonies of European imperial powers such as Spain and Portugal. Both Latin and Germanic universities in Europe preserved these traditions after the fall of the Roman Empire. In the Middle Ages, common law in England coexisted, as civil law did in other countries, with other systems of law. In the seventeenth century, Parliament established a check on the power of the English king and claimed the right to define the common law and declare other laws subordinate to it. During the early modern period while a national legal culture in England was evolving and at the same time, the growth of national legal systems in civil law countries was evolving as well.
According to our textbook, the common-law heritage is different from that of European civil law. It claims that civil law came out of the pristine atmosphere of the university system, and common law arose from the muck of courtroom battles. Three key characteristics of this common-law heritage emerged, one, judge-made law, two, use of precedent, and three, uncodified regulations.
Common law does not use codes, therefore it would be “uncodified”, which means that there is no comprehensive set of legal rules or statutes. While common law relies on some scattered statutes, which are legislative decisions, it is very much based on the judicial decisions that have already been made in similar cases, also known as “precedent”. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as year- books and reports. The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence—the study and theory of law— in civil law countries, and the growing importance of statute law and codes in common law countries.
The precedents to be applied in the decision of each new case are...
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Neubauer, David W., and Stephen S. Meinhold. Judicial Process: Laws, Courts, and Politics in the United States. 6th ed. Boston: Wadsworth, 2013. Print.
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