1)represents the law of courts as expressed in judicial decision
2)based on precedents provided by past judicial decisions,no written statues or prescribed texts 3)trial by the jury and the doctrine of the supremacy of the law(originally meant king above law,now means acts of governmentall agencies are subject to scruting in ordinary legal proceedings) 4)everything is permitted which is not prohibited by law
5)binding ,overruling through same court or legislation Judicial precedents derive their force from the doctrine of stare decisions[lat=stand by the decided matter]i.e that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction changing conditions,however soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the rest of the English speaking world.
This gives the system flexibility while general acceptance of cetain authoritative materials provides a degree of stability.Neverthless,in many instances, courts have failed to keep pace with social developments and it has become necessary to enact statues to bring about needed changes.In recent years ,statutes have superseded much of common law,notablyin the fields of commercial administrative and criminal law,typically however in statutory interpretation the courts have recourse to the doctrines of common law.Thus increased legislation is limited but has not ended judicial supremacy.
A common law system is generally less prescriptive than a civil law system. A government may therefore wish to enshrine protections of its citizens in specific legislation related to the infrastructure program being contemplated. For example, it may wish to prohibit the service provider from cutting off the water or electricity supply of bad payers. Please go to Legislation and Regulationsections for more information on this
. There are few provisions implied into a contract under the common law system – it is therefore important to set out ALL the terms governing the relationship between the parties to a contract in the contract itself. This will often result in a contract being longer than one in a civil law country. CIVIL LAW(CHARACTERISITICS)
1)based on statues and prescribed texts. 2)available in written form, specific codes covering mostly 3)corporate,tax,constitution with basic rights and duties 4)only legislative enactments are binding 5)precedents are to be followed Countries following a civil law system are typically those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America. Also, most of the Central and Eastern European and East Asian countries follow a civil law structure.
The civil law system is a codified system of law. It takes its origins from Roman law. Features of a civil law system include: *There is generally a written constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law and constitutional law) enshrining basic rights and duties; administrative law is however usually less codified and administrative court judges tend to behave more like common law judges; *
Only legislative enactments are considered binding for all. There is little scope for judge-made law in civil, criminal and commercial courts, although in practice judges tend to follow previous judicial decisions; consitutional and administrative courts can nullify laws and regulations and their decisions in such cases are binding for all. *
In some civil law systems, e.g., Germany, writings of legal scholars have significant influence on the courts; * Courts specific to the underlying codes – there are therefore usually separate constitutional court, administrative court and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code; * Less freedom of contract - many provisions are implied into the contract by law and parties cannot contract out of certain provisions.
A civil law system is generally more prescriptive than a common law system. However, a government will still need to consider whether specific legislation is required to either limit the scope of a certain restriction to allow a successful infrastructure project, or may require specific legislation for a sector. Please go to Legislation and Regulation and “Organizing Government to think PPP” sections for more information on this.
There are a number of provisions implied into a contract under the civil law system – less importance is generally placed on setting out ALL the terms governing the relationship between the parties to a contract in the contract itself as inadequacies or ambiguities can be remedied or resolved by operation of law. This will often result in a contract being shorter than one in a common law country.
It is also important to note in the area of infrastructure that certain forms of infrastructure projects are referred to by well-defined legal concepts in civil law jurisdictions. Concessions and Affermage have a definite technical meaning and structure to them that may not be understood or applied in a common law country. Care should be taken, therefore, in applying these terms loosely. This is further considered under Agreements.
System Features: Common Law Systems Civil Law Systems COMMON LAW versus CIVIL LAW SYSTEMS
System features| Common law system| Civil law system| Continuity of legal system| Evolutionary| Arbitrary| Major source of law| Customs and practice| Legislative statues| Reliance on precedent| Strongly| Weak| Judicial role in law making| Active and creative| Passive and technical| Role of legal scholarship| Secondary and peripheral| Extensive and influential| Judicial review of statutes and executive actions| Yes| No| Major decision stage| Trial| Investigation and examination| Trial format| Accusatorial/confrontational| Inquisitorial/collaborative| Use of argument and debate| Extensive/fundamental| Modest and restricted| Style of legal reasoning | Inductive| Deductive|
Trial emphasis on| Procedural correctness| Factual certainty| Evidentiary rules| Formal and restrictive(exclusionary rule)| None(all evidence considered)| Role of lawyers during trial| Primary| Secondary|
Functions of lawyers | Debate and oppose| Advise and inform| Judges role during trial| Referee/umpire| Advise and inform| Selection of judges| Political appointments from practicing lawyers| Merit advancement from judicial specialists| Status of judges | Political VIPs | Mid level civil servants| Citizen trial participation| Juries| Members of judicial panels| Appellate review focus| Procedural| Procedural and substantive| Unity of court structure| Unified court structure| Diffused court structuresMultiple specialized courts|
Summary of Differences between Civil law and Common law legal systems Set out below are a few key differences between common law and civil law jurisdictions.
Feature| Common Law| Civil Law| Written constitution| Not always| Always| Judicial decisions| Binding| Not binding on 3rd parties; however, administrative and constitutional court decisions on laws and regulations binding on all | Writings of legal scholars| Little influence| Significant influence in some civil law jurisdictions| Freedom of contract| Extensive – only a few provisions implied by law into contractual relationship | More limited – a number of provisions implied by law into contractual relationship| Court system applicable
to PPP projects| In most cases contractual relationship is subject to private law and courts that deal with these issues| Most PPP arrangements (e.g. concessions) are seen as relating to a public service and subject to public administrative law administered by administrative courts|