Our research has as an aim the task to draw lines of differences between the two major legal systems of the world namely: the civil law which may be defined as that legal tradition, which has its origin in Roman law, originally inspired by the Corpus Juris Civilis of Justinian, and as subsequently developed mainly in Continental Europe. The civil law legal tradition itself can be divided further into the Romanic laws, influenced by French law, and the Germanic family of laws, dominated by German jurisprudence.In this system there is a very great tendency to codify laws.
Laws are only those statutes enacted by the parliament as a means of respecting the principle of separation of powers and sometimes by recognized and competent authorities like the executive, there is a strictly observed hierarchy of norms and only a few sources recognized as primary sources of law.the other system is the common law system.
This legal tradition, evolved in England from the 11th Century onwards and it derives its force and authority from the universal consent and immemorial practice of the people. The principles of common law appear for the most part in reported judgments, usually rendered by higher courts, in relation to specific fact situations arising in dispute, which courts have adjudicated.again, in this system codification of laws is regarded not necessary, ranking of sources of law and the law making process. We will not look at the other legal systems as the above mentioned are not the only systems but there are others like,
‘African legal tradition of sub-Saharan countries, a far-east legal tradition Consisting of China and Japan, held together by the Confucian tradition, as well as Legal traditions that are influenced by religion, including for example Islamic, Jewish or Hindu legal systems and also, at least until some years ago a ‘socialistic legal tradition.
Our research having been limited to civil and common law legal systems only, we devoted a big section to showing their differences based on their sources of law and another on the principle of precedents and the doctrine of stare decisis in the common law system as not recognized as due in the civil law systems and will finally look at some other areas of distinction between these two legal systems for though emphasis was put on the above mentioned areas they are not the only areas of distinction in the two major legal systems. Nearly closing our research we will highlight some areas of intersection between the two systems. Closing our research we were able to come to a conclusion on the differences between the above legal systems on basis of sources of law, principle of precedents and doctrine of stare decisis after thorough examination of both legal systems. Sources of law
It is always indispensable going into the depths of a legal system when carrying out a comparative study of legal systems. Therefore, to clearly show the major differences between the above highlighted two legal systems we have to go back and study both the civil law and common law sources of law. Sources of law in the civil law system.
The civil law system having derived from the roman laws especially the corpus juris civilis by Justinian recognizes the importance of codification and ranking of laws according to their order of eminence and authority. Therefore as a very crucial way of differentiating the civil law system form the common law system we should closely look at the different sources of law in this system.
The civil law system unlike common law, classifies its legal sources into two parts, i.e. the primary sources consisting of the law itself, custom and sometimes in some countries excluding Rwanda, the general principles of law. While the other part is of the authorities or secondary or auxiliary sources of law which consist of the case law, doctrines, drafts of proposed laws and equity. The components in the parts of sources of law differ from country to country, time to time, subject matter and even from within the country applying civil law. Primary sources of law in civil law system
The law (enacted laws) These are not only laws by the parliament as the organ with the power to enact laws but even those by the executive and other competent authorities in given matters. The law is the highest source of law with the constitution at the top as the supreme or fundamental law of a state to which all other laws should originate and conform, then followed by other laws including international conventions which need a special treatment in order to be included in the domestic laws of a state.
Statutes are not highly regarded in hierarchy in common law as will be discussed later. This hierarchy may differ in different countries in the civil law system but let us take an example of the Rwandan hierarchy as one of the civil law countries. The Rwandan constitution of 4thjune 2003 as amended up to date is the fundamental law of Rwanda to which all other laws should conform. The organic laws which come to specify or complete the constitution and are voted by the chamber of deputies with approval of the senate.
The ordinary laws are near to the organic laws but are voted only by the chamber of deputies without approval of the senate. Decree laws which are enacted by the president in cases of absolute impossibility for the meeting of the parliament. These gain authority of ordinary laws when approved in the next session or they become null and void. Presidential orders. These are laws or orders by the president which he/she can enact anytime he/she finds it necessary. Ministerial orders by any competent minister in cases they find it necessary especially in execution of their duties. Lastly are the administrative regulations or by laws by any local authorities in execution of their duties. Custom (customary law)
These are practices and usages of societies which are generally accepted and respected as having the force of law. For customs to be considered a source of law it should be widely accepted and having long lived in practice and of course not against good morals and the written laws in force. Normally a custom is applied when it is praeter legem, meaning that it comes in to fill a vacuum in the written law, or secundum legem, when the written law expressly refers to it. For example the practice concerning succession in Rwanda, and finally contra legem when the custom is in conflict with the written law. Customs are nevertheless a subordinate source of law.
The authorities (auxiliary or secondary sources of law) General principles of law
These are some widely accepted principles of law normally not written but highly commended for their reasonable guidance to legal workers especially judges. These remain general principles as long as they are not included in the written laws. For example, the principle of in dubio pro reo, principle of double jeopardy, the principle of au judicare au dedere, principle of presumption of innocence, etc. Jurisprudence (case law, decided cases, precedents, rechtsprechung)
These are decided cases or judges’ decisions on cases as the name suggests. Whereas these are a recognized primary source of law in the common law system, the civil law system principally disagrees to this whole idea since a judge would be acting out of his duties (acting ultra vires) if his decisions are to be regarded as law as quoted in this statement by Mary Ann Glendon and others, “the civil law system doesn’t recognize the existence of the doctrine of stare decisis, thus judicial pronouncement are not binding on lower courts or subsequent nor are they binding on the same or coordinate courts” however case law is exceptionally respected on restricted cases in civil law, it is strictly applied on decisions held by the highest court of the state for example decisions by the German constitutional court are binding to lower courtsand those of the supreme court of Rwanda are also binding to lower courts.
Again sometimes case law can be made a law either by legislation or by evolving into a custom by a series of decisions on a certain case. This practice of case law or precedents has its particularities and we will come back to it while discussing its origins in the doctrine of stare decisis.
Doctrines (doctrine, die rechtslehre) These are writings of eminent legal scholars. These are also recognized as a source of law but especially help guiding and enlightening judges on some crucial and delicate legal matters. Equity This source also referred to as the judge’s power of discretion, is last resort and can only be referred to when the law, custom and other secondary sources are all silent or unclear on a given issue at hand. And so the judge is trusted to be of good conscious to save the situation by delivering a just decision. Sources of law in the common law system
Whereas classification and ranking of the sources of law in civil law is based on their importance and obligatory or binding force, it is not the case in common law, for common law is a system in which decided cases are reported and treasured as of great value and giving less value to codification of laws, it follows that this systems doesn’t consider hierarchy and that case law is on the top of their sources of law followed by others in kind of a disorganized manner compared to that in civil law system.
Therefore as again written by Mary Ann Gledon and others, in this statement “sources of law pertain not to how an ordinary citizen believes his conduct is governed, but to where courts look in determining what legal rules are applicable to resolve a specific dispute”. Again as stated “although there is no dispute that legislation is the source of law which has authority over all other sources, and that legislation increasingly is assuming the major role as a source of law, the fabric of the common law is it’s precedent and the vast number of volumes of unwritten law is the foremost distinguishing feature of the common law tradition”.
Precedents (Jurisprudence, case law, decided cases, precedents, rechtsprechung) As earlier discussed and will be in details, these are decisions by higher courts in common law system which become binding to lower courts once pronounced. The ratio legis (raison d’être) or reasoning behind these precedents is to ensure continuity such that there should be uniformity of decisions on similar cases and predictability so as to help a judge to predict instead of sitting and examine the same case examined by a higher court. Custom
The common law tradition was that judges were to find decisions of wiremen so as to resolve disputes. These decisions were then recognized as customs with a binding force after an uninterrupted long time in existence. This is not different from that in the civil law system, only the position given differs. Conventions
These are treaties or agreements adopted to dictate conduct in the functioning of the judicial system as well as other institutions. Royal prerogatives These are powers and rights given to the king to enact laws and establish courts. These powers were too much and unquestionable in the early centuries until attacked by advocates of the common law and only a few were left in the royal hands, such as the power to summon and dissolve the parliament, rendering assent to bills, presiding over the privy council, approving cabinet and ministerial appointment.etc Legislation
These are laws enacted by the respective legislative body. Constitution Britain itself at the root of the common law system doesn’t have a written and codified constitution but has left parts of which are treated it, like the magna carta, the petition of rights of 1628 and several statutes enacted by the parliament, but other countries in the common law system have constitutions but still though case laws don’t contradict it but are strongly recognized. The law of the European economic, community in England
This is a treaty of accession act signed in 1972. The principle of precedents and the doctrine of stare decisis. As defined in the document, common law and civil law – differences, reciprocal influences and points of intersection, the principle of precedents and the doctrine of stare decisis is “the method of common law to analyze previous court decisions, to find a general principle in each of them and to transfer these principles to a current dispute that needs to be decided”.
Again, this statement explains more on the above principle and doctrine, “If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis)”.
‘Stare decisis’ is an abbreviation of the sentence ‘stare decisis et non quieta movere’, i.e.: stick to decisions. This clearly explains and motivates the idea of continuity of court decisions since by the above Latin adage, the word implies that courts should before deciding on a given case sit and consider if there is a decision especially by a higher court on another similar precedent (occurred before) case, so as to rule the same way to ensure continuity And predictability. Though lower courts are bound by decisions of the high court in common law, there are circumstances in which they are free to act otherwise in what is known as the process of distinguishing as again referred to as matters of first impression, and these are; when the precedent and the case at hand share no similarity, for example either because, one issue is of a different legal domain from the other.
Secondly, it is when though the case at hand has some similarity with the precedent, but the judge in his discretion finds that the facts of the cases are different. For example when both cases are of private domain and on non execution of a contractual obligation. more to this is that the judge of a lower court is not bound a precedent he/she finds to have been drawn from nowhere, unmotivated or in violation of binding precedent by a higher court, as suggested by the statement “judgment per incuraim”.
Again, though judges of lower courts are bound by precedents, they are allowed to present their own opinion revealing the defects of the precedent and even request for appeal. For a case law to be a precedent it should have the power to rule even on future matters. The stare decisis has two aspects, namely the vertical and horizontal aspects. The vertical one suggests that decisions of higher court are binding to lower courts. A precedent ceases to be so when a higher court takes a different decision on the same case seen before. The horizontal aspect is that, not only does a precedent bind lower courts but binds others on the same level.
Some other areas of distinction between civil law and common law systems
Written and codified laws vs. unwritten and scattered provisions and decided cases Where writing down laws and collecting them into one book is important for the civil law systems, it is not of great urgency and importance for the common Law system since most of their laws are not codified and written. This writing by some professor will help to explain the situation in the two systems and the reasons behind. "One might say that the world is divided into two manners of men: the man who says: 'I have in my pocket a blueprint plan of the universe, complete and written down: whenever I meet a new problem or have an old one I have only to consult my plan and by simple logic deduce the appropriate answer.' "Of such men are good civil law lawyers made.
"And the man who says: 'I don't have a preconceived plan for the universe all written down: I can't anticipate all the problems of the world: I'll meet them as they come, one by one bringing to bear upon them my experience and common sense, and I'll not lay down any general rule, but answer only the problem before me.' "Such men make good common law lawyers.
"From these different positions certain conclusions seem possible. First, the man who lives by the preconceived plan will find his stability, his security in the written word - the code - the statute - and will say that the general principles set forth therein survive even erroneous application, while the man who declares that he has no preconceived plan, but only individual solutions to particular problems, is apt to find his stability, his security in the individual instances and their conscientious repetition in experience." Practices in private law
Looking at some practices in the two systems, especially private matters, whereas contractual freedom is highly restricted in civil law system, it is governed at most by suppletive rules, that is there is not much of imperative provisions regulating agreements between individuals like in the civil law systems as expressed by lacordaire, “Entre le fort et le faible c’est la liberte’ qui oppromi, et la loi qui libére”. Translated to English it says “between the strong and the weak, it is liberty that oppresses, and the law liberates”, here this means though contract is born from people’s agreements, they would result into great imbalances, therefore, contract should be strictly restricted”. Opposing fouille’s statement, “Qui dit contractuel dit juste”.
Translated to English would be “who speaks from contract speaks the truth or is right”, supports the common law practice of leaving too much gap for parties to a contract to make their own arrangements. Again in practice what is not expressly prohibited in common law, is permitted where as on the contrary what is not expressly permitted in civil law system is prohibited. In criminal matters, civil law system contends that a suspect is presumed innocent until proven guilty where as it is the contrary in the common law system, for a suspect is presumed guilty until proven innocent.
Again, the accused must prove their innocence otherwise they remain guilty and might end up pronounced guilty where as in the civil law system; the accused cannot be compelled to prove their innocence but that who accuses them. Looking at the administrative laws of these two systems, the common laws system does not assume a separate legislation to handle administrative cases where all cases be civil and administrative go to the same courts and judges, which is different in most cases in the civil law system, where civil and criminal cases are separated from administrative cases and therefore have a defined structure of administrative courts. Where these courts are not separate, the judges are separated.
Areas of interconnection Though the two systems are different in many aspects, they also have some few areas of interconnection. Coming to some issues of private law, in the area of international commercial arbitration, these systems seem to collide. Parties can agree on where to take their case, who handles it, what they should agree on and what to disagree on. Parties will choose which rules to prevail in their cases despite the fact that they come from different legal systems. International commercial arbitration being crosscutting puts into consideration both legal systems, such that one is not oppressed for seizing international arbitrators.
This is not the only area of convergence of the two systems for there are several conventions signed and adopted so as govern international legal practices, for example the agreement on the Rules on the Taking of Evidence in International Commercial Arbitration (IBA Rules of Evidence) which were set by the International Bar Association (IBA) in 1999 should be mentioned, “New York Convention” (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) from 1958, initiated by the United Nations, etc.
Conclusion Briefly, having explained that the civil law system is that legal system that originated from roman law and later spread in continental Europe and that it finds it’s laws in written statutes and codes, and having seen that common law system is that legal system that originated from England in the 11th century, where justice was initially based on the common practice and that decided cases are the main source of law, as analyzed in the principle of precedents and doctrine of stare decisis, one easily learns that these two legal system are to a greater extent different though they come to converge at some point especially where in exceptional cases, civil law decided cases by supreme courts become binding to lower courts as in common law.
But all in all is that analyzed from the angle of sources of law and treatment of the decision of judges, it is obvious that these two systems differ, for one highly empowers the judge while the other binds him under the law. Therefore we as students of comparative law find that, to a greater extent, the civil law system and the common law system are different in origin, nature, belief and practice despite the fact that they have some minor similarities.
BIBLIOGRAPHY Legislation Rwandan constitution of 04th/06/2003 as amended up to date. Books J. Henry merry man, an introduction to the legal systems of Western Europe and Latin America (the civil law tradition), 2Ed, Stamford University press, Stamford, California, 1993. M. ann. Glendon et al, comparative legal traditions, text, materials and cases, American casebook series, west publishing co., 1985, USA, Minnesota. Electronic sources.
Patrick Schindler / Schleifenbaum & Adler,Toronto / Siegen, 2008, p.4, available at http://www.consulegis.com/fileadmin/downloads/thomas_marx_08/DLengeling_paper.pdf, last accessed on 26th/03/2012. Quote on description of the two major world legal systems, available at http://www.duhaime.org/LegalDictionary/C/CivilLaw.aspx, last accessed on 26th/03/2012. H. E.Ndounkeu, La liberte contactuelle dans les sûretes personnelles en droit OHADA,
Université de Dschang - DEA en droit communautaire 2006, available at http://www.memoireonline.com/10/07/667/m_liberte-contractuelle-suretes-personnelles-droit-ohada2.html. A summary on differences between the civil law system and the common law system, available at http://www.vanuatu.usp.ac.fj/courses/LA318_Comparative_Legal-Systems/LA318_5_civil_legl_sys.html, last accessed on 26th/03/2012. Burden of proof in both major legal systems of the world, available at http://en.wikipedia.org/wiki/Legal_burden_of_proof, last accessed on 01st/04/2012.