Civil Law vs Common Law

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 influence that they are now viewed as the very basis of the modern civil law: The French civil code is now followed in the Netherlands, Belgium, Poland, Spain, Portugal, Quebec, Latin America, Sub-Saharan Africa, Indochina, and Indonesia; the German code in Austria, , Ex-Yugoslavia, Switzerland, Greece, Japan and South Korea.

The French Code is an evaluate version of the Corpus Juris Civilis because it incorporated the principle ideas of the French Revolution, including the right to possess private property, the freedom to contract, and the autonomy of the patriarchal family. With private property, the Code’s authors: J.J Cambacérès and Napoléon consciously attempted to break the old feudal estates of the aristocracy by prohibiting restraints on the sale of land. The French code joined one of the United State Constitution mentioning that lawyers couldn’t foresee every possible legal eventuality, thus they set flexible general maxima of justice rather than detailed provisions.

Unlike the French Code The German Civil Code was meant for the use of trained experts. Indeed because of the Pandectits, the German’s Codes’ organization and form is incredibly precise and technical. Sentence structure indicates which party had the burden of proof. However its overall approach rely on many of the same political and philosophical ideals, notably the “laisser faire” economics and the autonomous right of individuals. [5] Moreover separated and apart from the movement of codification of civil or private law occurred the development of the public law, a constitutional and administrative law. Evolution of culture and nations developed such changes in the law system. In fact, entities of law have moved away from relying only on the civil code, were the legislative power make the written law later followed. Special legislation and juridical interpretation have become more influential.

We just introduce the definition, history and evolution of the Civil law. We can now explain what is the distinction between civil law and Anglo-American common law by emphasizing the contrast and highlight the similarities.

The common law, or case law or precedent, differs from the civil law because it is a judge-made law, trough decisions of courts and similar tribunals rather than through executive branch action or legislative statutes. On the principle that it is unfair to treat similar facts differently on different occasions, a “common law system” is a legal system that gives weight to precedential laws. The law court looks to past precedential decisions and is bound to follow the reasoning used in the prior decision, it’s the principle know as stare decisis. If there were no similar cases, it’s a “matter of first impression”, then the judges have the duty and authority to make law. [6] The origins of the Anglo-American common law system can be traced back to the year 1066.

Then name “common law” comes from the theory that the King’s court represented the common custom of the realm, as opposed to the local customary law practiced in the country. The enduring principles of common law were the products of three courts created by Henry II. The court of Exchequer dealt with tax disputes; the Court of Common Please settled matters that had not involve the King’s interest; and the Court of King’s Bench to control unruly publics official handled cases of a direct royal interest, such as “writs”. Often the King’s Bench controlled the abuses of power by the King’s, implementing a doctrine of the common law: the supremacy of law. [7]

The common law by definition isn’t based on statutory law or legislation. Its narrow sense must also distinguish from the law that evolved out of equity. Indeed Judges don’t apply equality but take in consideration the circumstance with their prior situation. Common law needs also to be distinguished from the law that evolves out of admiralty. The common law’s basis in court decision or precedent is also a principal factor distinguishing case law from the Romano-Germanic civil law, where the grounds for deciding cases are found in statues, codes and prescribed texts.

However limitation of the system appeared, such as inflexibility, leading to the creation of new writs.[8] As a consequence, the court soon could only hear cases that fit precisely within the parameters of the traditional writs. To overcome these situations, the court of equity created could order an injunction, restitution, or specific performance. Until the 19th century continued a sharp division between the common law and equity. But finally in 1848 New York enacted the “Field Code” merging law and equity into one jurisdiction. It was soon adopted by most of the American states, England and many British colonies.

The way Common law spread created also a contrast with the Civil law. Indeed there was a direct political linkage to England and all the countries where common law was implanted. [9]Whereas in the civil law system, which was easier to be received, encapsulating in convenient codes, dealing with private law little threat to political powers, could be export by students. But the advantage of the Common law lies in the principle that it is more malleable than the statuary law or regulatory law. If the civil law is full of blank because it admitted that they couldn’t foresee each codes, the common law bound by precedent, revise the law, to adapt to new political trends through as series of gradual steps, that gradually works out details without sharp breaks. It flows thereby reduces disruptive effects. When a legislative process in the civil is long and blunt.

Finally, the case Raulin VS Fischer, allow us to notice what distinguish the civil law and the common law.

Miss Fisher, an American, recklessly rode a horse in the Avenue du Bois de Boulogne in Paris and ran into Mr Raulin, a French officer, seriously injuring him. The Procureur de la Republique prosecuted Fisher or criminal negligence in the Civil Court of First Instance. By the provisions of the French Code, a person who is injured by a criminal act may claim in the prosecution and claim for damages. But in such case one judgment only is pronounced for both. [10]

The point raised by the defendant was that the judgment sued on was in truth a penal judgment within that rule and part of it might be more or less civil. In the French court there was no power to dissect the judgment and enforce in England that part which was enforceable by action though the judgment as a whole was not enforceable. According to the plaintiff, Raulin, it was necessary to seek to recover the sum of 636 pounds in an English court, since the French judgment didn’t bring damage for both public prospection and private suit. There were no doubts that the public prosecution (wrong to society,

Fisher broke the law contained in Art. 320 of the Penal Code) and the private suit (wrong to an individual: Raulin) are two quite separate and distinct proceedings from a common law point of view but not for the civil law. Through this case we can see that French Court following civil law and English Court following the common don’t have the same jurisdiction which causes issue to rise, and questions such as: should a common law court refuse to recognize an award of civil damages handed down by a civil law criminal court?

In short, the comparative law distinguished the Romano-Germanic Civil Law and the Anglo-American Common Law based on: their different ideology, the civil law induct a Positive law and the “laisser faire” economics whereas the common law inducts the Natural law. These different ideologies explain that the civil law is independent of government whereas the common law is considered as superior to government. Their legal rules, content and influence also is different: the civil law concerns mainly private law gathered in codes written by lawyers whereas the common law deals with private and public law based on case law where Judges are the most influent actors. In civil law the use of case law is respected whereas it’s required in the common law.

Finally the reasoning is deductive in civil law whereas it’s inductive in the common law, and the procedure is inquisitorial in the civilian law whereas it is adversarial in the case law. Nevertheless, the sharp gap between the two tends to decrease since the civil law entities of law have moved away from relying only on the civil code, were the legislative power make the written law later followed. Special legislation and juridical interpretation have become more influential. -----------------------

[1] : http://wapedia.mobi/en/Civil_law_%28legal_system%29#4.

[2] : Ray August, 2008, International Business Law. Pearson. [3] : http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29

[4] : Ray August, 2008, International Business Law. Pearson. [5] : http://www.public-domain-content.com/encyclopedia/Law/Civil_law.shtml [6] : Marbury v. Madison, 5 U.S. 137 [7] : http://www.bbc.co.uk/history/british/middle_ages/henryii_law_01.shtml

[8] :http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/legstud6&div=8&id=&page= [9] : http://www.britannica.com/EBchecked/topic/206236/Field-Code [10] : Power Point on international trade law found at sy.zlgc.org/Upload/20080527112427931.ppt