Common Law and Civil Law Systems: Elementary Contrast
What is the difference between the civil law system and the common law system? The answer typically given is that civil law is codified whereas common law is formed by case law. Although basically true, it is both simplistic and misleading. In fact, there are several key differences between civil and common law. It is appropriate to first define some keys concepts:
Legal system: the set of laws in a country and the ways in which they are interpreted and enforced. For example, common law and civil law are two legal systems.
Civil law: a legal system that has its origin in Roman law. Civil law is a comprehensive system of rules and principles usually arranged in codes and easily accessible to citizens and jurists.
Common law: a legal system that has its origin in English law. Common law is a system of law based on precedent and custom rather than on written laws.
Precedent: a rule or principle of law that has been established through a previous ruling by a court of higher authority. Precedent means that the principle announced by higher court must be considered, and often followed, in later cases.
Jurisprudence: the science or philosophy of law. It helps establish a better understanding of the principles that lead courts to make decision by analyzing the legal reasoning, legal systems, legal institutions, and the role of law in society.
Having now clarified these ideas, let’s turn to the main difference between common law and civil law: Historical growth. Historically, common law involved a single, centralized system of courts wherein the creators of the law were judges supported by a strongly organized profession that came to be attached to it—that is, the case-by-case system. Civil law, on the other hand, was not administered by judges but by universities and professors. In the French system, the main concern is clarity of expression, lucidity, uniformity and predictability of the law, so everything is codified. By contrast, common law developed as case law with a strong sense of reality and a flavor of judicial individuality. Thus, we usually see countries that follow common law without a written constitution and countries that follow civil law with a written constitution.
In theory, the role of precedent is the same in both systems—the difference is the degree of importance accorded. In common law, precedents are binding, whereas in civil law, the judge is not so bound and is assumed to decide every case upon the basis of their own judgment. In common law, it is a judge’s decision apply to a specific case, and if a general rule needs to be created to fill the gap, legislators will do so in accordance to the judge’s decision on the case. In common law, judges decision are the law. In the French system, the judge does not have to follow the decisions of others because laws already exist and are both specific and broad enough to be applied to different cases.
In the French system, the judiciary only applies the law created by the legislator. In practice, however, it is a little different. Judges in civil law tend to pay attention more to precedent for three main reasons: First, for stability and predictability as the public must know what the law is and consistent disregard of precedent would be socially intolerable. Second, because the judges from lower courts know that their decisions can be appealed by a higher court. And finally, to save intellectual labor as judges are too busy in every single case to engage in an independent interpretation of law.
I will now examine the importance of statute law. In common law, judicial decision are the law. Judges in Canada, for example, answer cases in accordance to the Charter of Rights and Freedoms, and then those decisions become the new law. Rules, principles, and laws enacted by legislators (statutes) are usually secondary and come to support judicial decisions. In common law, statutes complete and support judicial decisions—in other words, statutes are secondary. The judiciary can easily appeal a law passed by the government or the legislature (known as the procedure of judicial review).
In the French civil law system, because of the separation of power from Montesquieu, the judiciary cannot create the law. The idea is that, because the courts deal with a case, they cannot be subjective enough to create the law. Therefore, their role is only to resolve a case by applying the law. In order to avoid discordance within the court system, the ‘’court of cassation’’ ensures that judicial decisions are uniform. In the French system, the government and parliament create the law in France because they are the representative of the people. If a statute is unfair and violates the code, or is unconstitutional, the case will be dealt by a specific institution, called the “conseil constitutionnel.” Statutes are primary in the French system, and judicial decision are secondary as they support the statute. In the French code system, citizens are not bound by any rules other than those formally enacted statutes.
But how do lawyers approach the law? Lawyers from civil law tend to be more conceptual while lawyers from common law are considered more pragmatic. In civil law, lawyers usually start from a legal norm contained in legislation, and by means of deduction, makes conclusions regarding the actual case. On the other hand, a lawyer in common law starts with an actual case and compares it with the same or similar legal issues that have been dealt with by courts in previously decided cases, and from these relevant precedents, the binding legal rule is determined by means of induction.