Civil Law vs Common Law

Topics: Common law, Law, Civil law Pages: 6 (2200 words) Published: November 7, 2011
There are more than 200 nations in the world nowadays, and each has a different set of laws that govern its people and its relations with the rest of the world. Whereas, international law governs relations between states, institutions, and individuals across national boundaries, municipal law governs this same person within the boundaries of a particular state. The comparative law, which is the study, analysis, and comparison of the different municipal law systems, classifies countries into legal families. The two widely distributed families are the Romano-Germanic Civil Law and the Anglo-American Common Law. This short essay seeks an answer to the differences between two fundamentally different legal theories or systems. The original difference is that historically, civil law was developed out from the Roman law of Justinian’s Corpus Juris Civilis. Trough the enlightenment, local compilations of legal principles recognized as normative were gathered to create the codification of the Civil law. Whereas, common law was developed by custom. It was applied before any written law and continues to be applied in courts after written law. Therefore, common law is developed by judges, varies from case to case depending upon the customs of the society and the stare decisis. Whereas, in civil law judges have to follow a predefined written set of statutes and codes. However, the codification is by no means a defining characteristic of the civil law system. Indeed the civil law which was originally framed in France is divided in subgroups. For instance, the statutes that govern civil law systems of Nordic countries such as Sweden are not grouped into large codes like those find in Germany or France. [1]

The Civil law or civilian law comes from jus civile “citizens’ law” which was the Late Imperial term for its legal system, as opposed to the laws governing conquered peoples (jus gentium). It is the legal system derived from Roman and Germanic practice and set out in national codes.[2]

The civil law dates back to 450 B.C. , when Rome adopted its Twelve Tables. The most significant event in its historical development was the compilation and codification of all Roman law done under the direction of Byzantine Emperor Justinian (483-565 A.D.) [3] This Code Juris Civilis preserved in written form the ancient legal system, indeed during the medieval ages was created the canon law based on Roman Law and used in the Church’s courts. In the 11th and 12th century, the Roman Law spread trough its Europeans students, which were the only trained lawyers from university in the Northern Italy, where the Corpus Juris Civilis was analyzed by glossators and commentators. Their common background led to the creation of a new civil law, one based on the Roman Law, Canon law, and the huge body of writing created by glossators and commentators: the jus commune or the common law of Europe (different from the Common Law system). Along with the development of a theory of law, others events will lead to the disappearance of the jus commune law. And beyond the Roman law foundations, came a new characteristic: its inclusion into civil codes: the system of codification. The concept of codification was further developed during the 17th and 18th century, as an expression of both the ideas of the Enlightenment and Natural law. The appearance of national state, with national literature written in national languages, led to aspiration for new system of law. In many state of Europe, legal nationalism found its embodiment in national codes. Codes of Sweden (1734), Prussia (1794), France (1804), Germany (1900) were released by great figures such as Frederick the Great of Prussia and Joseph II. They attempt not only to bring about legal unity within a kingdom, but also to express the political and philosophical idea of the time, which were the concept of democracy, protections of property and rule of law. [4]

Two national codes have had such widespread lasting...
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