The major comparison of civil law and common law lies in the fact of “Corpus Juris Civilis” which contains many substantial laws. Its influence in the civil law is paramount than the common law which gives lesser value to the the aspect of “corpus juris civilies “. The civil law and common law take different approach in classification of the Law. The modern civil law has been divided in to the “private Law” and ‘public Law” in which the private law includes the civil and commercial codes.
The common law recognizes the public laws which are termed to be the effectiveness of the public interest, as criminal law, administrative law and constitutional law. (2) ———————————————————————————————————— 2. John C. Merrman the civil law tradition 2nd ed. 1985 3 The civil law and common law differ in the court system also. While the common law system follows the unified court system the civil law adhered to separate court systems.
A court can not try the cases which lie in another jurisdiction of the court. Moreover the common law follows the hierarchical court of order in which the highest court will be the apex court, but in civil system judicial system is separate as a set of 2or more various structures without any link. The Judicial proceedings are public and the parties can monitor the proceedings under the civil law, but these parties are under the supervision of civil law judge and also under the observation of the public prosecutor to prevent any unsatisfactory actions.
.They not only controls the parties but also the mold the fact finding process in the proceedings. In common law there is no formal civil law counterpart to breakthrough the evidence, the unfolding the evidence carries out only by discovery process. Generally the common law does not take any particular or strict view regarding the scope for the trial, but under civil procedure, there are number of meetings, hearings, communication evidences, initial proceedings etc.
And here all the issues will be defined at the direction of the judges. Moreover in civil law proceedings the counsel must produce the “proof “before the judge and the opposite counsel before examining the 4. Speech by John H. Langbein, Restricting adversary involvement of proof of fact: Lesson from continental civil procedure, Sep. 25 1985, Comparative legal tradition, 1985 4 witnesses. Later the judge frame the charge .
Since there is no importance given to the cross examination opposite counsel should have to scrutinize the record summary of completed and correct version of the testimony of the witnesses. But in the common law since there is no pre trail proceedings, there is no scope of “evidence”. The parties usually propose the evidence to the judge either in writing or in oral hearing. The judge delivers decision on the basis of relevancy and admissibility of those evidences. Apart from this, the judges in the civil law trial ,are considered themselves as mere appliers of the code of the provisions in the case .
But in common law it can be found that the judges usually in search of an answer to the issues by applying their creativity in the cases. The significant part of the both civil and common law is the absence of jury i. e the presence of lay people who are experts in concerned legal atmosphere , in the process of decision making. In civil law the lay judges usually serve for continuous term, unlike in common law, instead of only a single case. (5) Now we look upon the litigation practices under civil law and common law in the context of German legal system.