The major differences between common law systems of law and civilian systems of law
Common law and civilian systems of law have been in operation for hundreds of years. While there are many similarities between the two systems with respect to the manner in which legal issues are adjudicated, there are significant differences between their substantive and procedural laws. The list of differences is exhaustive and this paper will focus on the main differences between the two systems with an emphasis on the sources of law. From the legal practitioner’s perspective the civilian system’s emphasis on the written law or the codification of laws is what accounts for the major differences between civil law systems and the common law systems.  It is this structural distinction which accounts for the manner in which law is developed and practiced in the both systems. This paper will therefore focus on the sources of law and their contributions to the major differences between civil systems of law and common law systems of law.
The origins of both the civil law system and the common law system is important for understanding the sources of law in each system and their implications for their structural differences. This part of the paper will offer a brief historical overview of the origins and development of common law systems and civil law systems. An examination of the history of common law systems and civil law systems demonstrate that each system acquired a distinct method of interpreting and applying laws. These distinctions have given rise to the current major differences between the syst
i) Common Law Systems
The common law originated from English custom and follows from a practice designed to distinguish it from continental law. Based on a system of “investigation and decision-making”, English common law stood as a bastion between the state and the individual protecting private property from arbitrary state action. It was under Henry II’s reign that common law developed with the circuit justices travelling throughout England “dispensing the King’s justice.”
There were two distinct judicial systems which were the royal courts and the feudal courts. The royal courts concentrated on the relationship between the King and his subjects which invariably included matters relating to taxes, “serious crime and property.” The feudal courts presided over local legal disputes. The Roman Law which is credited with having influenced the civil law also influenced the development of common law during this period. For instance at the time England introduced and developed its royal courts the Corpus Juris Civilis which forms the basis of early civil law structures under Roman law formed a great part of the legal teaching in European universities. Some of these teachings were picked up by English legal practitioners and judges.However, in order to effectively administer justice royal court judges implemented new laws largely influenced by Roman law and local customs.
Eventually a custom developed in which judges would resort to the Roman law in order to accommodate gaps in the common law. The common law itself developed around a system in which previous decisions would bind the court rendering the decision and all lower courts under the doctrine of stare decisis. However, this was not always the case, since the disorganized state of the courts and the lack of reliable record keeping made it virtually impossible for a decision to stand up in subsequent cases. During the thirteenth century however, a precedent if proven could stand as evidence of established custom and had persuasive value if nothing else.
By the seventeenth century a decision by the Exchequer Chamber was accepted as binding and by the following century precedents began to carry with it the force of the law. By the nineteenth century with a greater capacity for recording cases and the precedent took its place in the common law system as a binding force on all courts of equal jurisdiction and all courts below the court rendering the decision. As Algero explains:
“In this system, precedent is considered a source of law, whether it is based on one decision or one hundred decisions.”
Under colonization British citizens and subjects were protected by and accountable to British law and the common law system of precedents throughout the British empire. It therefore follows that former British colonies have inherited the English common law system and this would include Commonwealth countries such as Canada, Australia, New Zealand and the United States as well as former colonies in the Caribbean, Africa and Asia.
ii) Civilian Law Systems
The civil law system is derived from the Roman law which was codified “in the Corpus Juris Civilis of Justinian” and was eventually mirrored throughout Europe and “around the world.” What followed was a system of two different categories of civil law systems. France represented a civil law legal culture which followed from its Civil Code, 1804. Others that followed in the French tradition were other European Countries and former French colonies such as Quebec and Louisiana. A second category of legal systems followed from the Roman law in uncodified form such as South Africa and Scotland. As Tetley explains:
“Civil law is highly systematised and structured and relies on declarations of broad, general principles, often ignoring the details.”
In general Europe “received civil law from ancient Rome” and held on to by “codification” which followed from Napoleon’s various victories and later on these various codes were modelled after the French Civil Code, 1804. Other countries such as those within Latin America and Egypt took an example from the French Code as well. Louisiana and Quebec however would incorporate the civil law codification process but would amalgamate it with “certain elements of common law origin.”
The Major Differences Between the Civilian Law System and the Common Law System
i) The Sources of Law
There is an obvious distinction arising out of the historical developments of both common law and civilian law systems of law. This distinction is drawn from the sources of law in each of these families of jurisprudence. Under the common law systems of law the substantive and procedural laws have been amalgamated from and around the courts and its precedents. Under the civil law system of laws the procedural and substantive laws are derived from its codes. Professor of Comparative Law at Chicago University, Max Rheinstein puts this major distinction in its proper perspective as follows:
“While the Common Law is characterized by its having been centered in one Set of the courts and its organized bar, the Civil Law has been centered around, a book a set of universities.”
The reliance on codes and a particular school of thought influences the manner in which law is practiced and developed in civil law countries. As a result of the codification orientation law has a more formal and technical approach. The common law with its predisposition toward established rules and principles have developed a less formal approach which encourages a variety of thoughts and input.
ii) The Roles of Judges, Lawyers and Disputants
These diverging approaches to law is reflected in the manner in which judges adjudicate and lawyers practice. William van Caenegem accounts for the different approaches to the systems by describing the common law system as primarily adversarial in nature. Essentially what emerges is a confluence of “judicial opinions” which contributes to a measure of uncertainty and unpredictability within the common law regimes. This uncertainty and unpredictability lends itself to room for creative thought and cultivates an adversarial system.
Under the civilian systems of law where the focus is on codes cases do not factor in as they do under the common law system. This structured and stagnant process all but dispenses with the need for judges to render reasoned decisions as they do under the doctrine of stare decisis by way of the ratio decendi in the common law system. The doctrine of stare decisis simply means:
“…to stand by things decided and not disturb the settled law.”
In turn the ratio decidendi refers to the “rule of the decision” and is distinguished from the obiter dicta which refers to “extraneous comments” made by judges and are not central to the ultimate ruling rendered.
Under civil law systems no such case-base structure exists. Ultimately judges interpret and apply the codes with the result that the approach is non-adversarial. Relieved of the duty to provide reasoned decisions judges under the civilian law system quite often provide rulings that are:
“scant and not likely to give rise to great scope for adversarial and position-based argumentation. The study of law, at least implicitly, relies less on dispute situations between rights-claimants, and more on theoretical study of legislative scheme; no so much on the dispute resolution aspect of law as on the organisational and technical aspects of the law.”
Essentially civil law jurisdictions’ focus on codification endorses a singular control of the law by government. In other words the government exercises a greater measure of control over the adjudication process than in common law systems of law. By passing laws which only require courts to interpret and apply them the government continues to steer the development of law.
Under common law systems of law, at least theoretically, the courts not only adjudicate but to a certain extent make the law. The roles of judges in each of these systems of law are vastly different at a result. As representatives of the government, judges within the civilian system carry with them an investigative obligation which manifests itself in the manner in which proceedings are conducted. By and large civilian law judges:
“play a more direct role in formulating the factual basis of a dispute because of their investigative powers.”
In common law jurisdictions judges are not at liberty to investigate the facts although they may draw conclusions when the disputants version of the facts are disputed. Recent reforms in France are designed to confer upon judges a broader duty to play investigative roles in the adjudication process.
It therefore follows that the investigative role of the judge in civilian systems of law and the determinative role of judges in the common law system accounts for the diverging roles of the participants in the litigation process. For instance the judge under a civilian legal system participates in the investigation of the facts at both the pre-trial stage and during the course of the trial. Under the common law system of law however:
“…the major emphasis of the system is on procedural justice, i.e. on a court achieving justice in the framework of the dispute as the parties present it, not on engaging in an exhaustive investigation of the ‘truth.’”
In other words the parties to a legal dispute determine what facts they will rely on to prove their respective cases or disprove the case against them. If a judge is powerless in any realm of the common law system it is in his or her ability to go on a fact finding mission. On the other hand if there is any power at all ascribed to judges in a civilian law system is found in his or her ability to commandeer the facts that will resolve the dispute.
The diverging roles of the judges in the common law system and the civil law systems places greater emphasis on the different approaches to the practice and application of law. By permitting the judges a greater degree of control over the investigation of facts, the civilian legal system undoubtedly devotes its attention to substantive justice. On the other hand, the common law system with its emphasis on party autonomy directs its attention more sharply on procedural justice.
These differences in the approach to justice has different consequences for the cost of litigation in each system of law. As van Caenegem points out under the civilian legal system the emphasis on judicial investigation increases the cost of litigation for the state whereas under the common law system where party autonomy is preferred, the cost of litigation is primarily that of the disputants.
The sources of law and the manner in which they are applied are primarily responsible for the different roles of the judiciary. Since the judges in a civilian system sit with the single purpose of interpreting and applying the law it is entirely reasonable that they investigate the facts before applying the law. By contrast the common law judges who can to a certain extent make new laws where none are provided for by precedent or by statute and are bound by the doctrine of precedent it easy to accept that they should not be permitted to investigate the facts only to reconcile or distinguish. those facts with past decisions.
iii) Constitutional Law: Doctrine over Jurisprudence
Reliance on established principles and past decisions is perhaps the greatest defining element of common law systems insofar as it distinguishes between common law systems and civilian systems. The fact that the UK does not have a written constitution is perhaps the most striking example of the common law’s propensity to adhere to tradition under the doctrine of stare decisis. Fernando Orrantia explains that the British Constitution is an amalgamation of many acts of Parliament and judicial decisions. The fact that the United States has a written Constitution makes it easier for civil law attorneys to understand the United States legal system since written Constitutions are common to civilian law systems.
At the end of the day the sources of law provides the most important distinguishing marker between common law systems and civilian law systems of laws. It explains the nuances, structures, practices and policies that divide the two systems. In a paper prepared by Jean Monnet and Rubert Schuman at the Miami European Union Center the following statement encapsulates this view:
“A major difference between civil law and common law is that priority in civil law is given to doctrine over jurisprudence, while the opposite is true in common law.”
The investigative role of the judges in the civilian system of law as opposed to the determinative role of judges in the common law system bear these observations out. It is also true that the composition of written constitutions are also reflected in the civil law’s propensity to place much reliance on doctrine over the jurisprudence. Likewise the doctrine of stare decisis in the common law system together with the lack of a written constitution in the UK support the supposition that jurisprudence over doctrine is prioritised in the common law systems.
Be that as it may, written constitutions have emerged in many common law jurisdictions. These codes are primarily viewed as a means of recognizing and giving voice to the particular cultures, practices and values that distinguish one jurisdiction and its people from another. Even so, constitutional laws have their roots in the common law and the manner in which constitutional provisions are interpreted still form the basis of case law. For instance Australia which has a written constitution still maintains “constitutional links with the United Kingdom”. Since the UK constitution is embedded in age old documents dating back to the Magna Carta and the common law precedents’ system, a written Constitution in Australia is not the end all code of law that it is in civilian systems of law.
In the United States the common law is regarded as indivisible from the constitution. The common law like the constitution embodies concepts of due process, avenues for judicial review and the fair administration of justice. In this sense the constitution of common law countries although a code itself performs a different function than it does in the civil law system. In the latter jurisdictions the Constitution is arguably a means by which the government regulates its citizens whereas in the common law jurisdictions it serves as a means of protecting its citizens from arbitrary action by the state and guards against abuse of governmental power. In other words the civil law constitutions makes it people accountable to the state while the constitutions of common law countries provides a means by which the government is accountable to its people.
In demonstrating the point even further, Monnet and Schuman submit that:
“Civil law is principally made by professors and legislators. Common law is made by advocates and judges. Some consequences have flowed from this difference in authorship. For example, in civil law, private law is classified and expounded substantively, by reference to persons, things, obligations and actions…Common law, on the other hand, is marked by casuistry, a fascination with procedure, and an absence of system.”
iv) Other Important Differences Between the Civil Law and Common Law Systems
The procedural and substantive differences have already been discussed. However there are additional distinctions that are pointed out by Monnet and Schuman. For instance the manner in which the laws are interpreted are worth noting as it points to the differences in the law making process and the sources of law in each of the legal systems.
Monnet and Schuman point out that in civil law systems have cultivated a practice in which statutes are interpreted in a what can be described as “in good faith or reasonable in all the circumstances” as opposed to literally and strictly. This is made possible by the brevity of legislative provisions which are typically:
“written in broad terms and with what looks to the common lawyer like an absence of detail.”
By contrast, common law systems tend to create legislative provisions that are steeped in detail setting out guidelines and definitions for the interpretation purposes.
These statutory differences have consequences for the role of the attorney and the manner in which he or she prepares for trial. For instance under the common law legal system the common law lawyer will typically compare the facts of the case with the applicable statutory provision to determine “the scope of each rule” contained in the applicable statute. With the emphasis on legal principles rather than facts, civil law lawyers focus on the history of the statute, determine their respective purposes and goals, “their domain of application” and ultimately “explains their effects” with respect to duties and rights.
As previously noted common law systems rely on case law for guidance and this rebounds to the practicing attorney. In preparation for trial common law attorneys must invest research efforts on previous decisions.  Lawyers in civil law jurisdictions however, focus their resources on researching and reviewing statutory provisions turning to case law for mere interpretative guidance. These different approaches account for the different functions of statutory law under the civilian system of law and the common law system of law. These different functions can be summarised as follows:
“Common law statutes complete the case law, which later constitutes the core of the law expressed through specific rules applying to specific facts. Civil law statutes provide the core of the law – general principles are systematically exposed in codes and particular statutes complement them.”
What can be gleaned from the different emphasis on statutes and case law precedents is the level of flexibility accorded each system of law. It is fair to state that under common law jurisprudence with reliance on the doctrine of precedents high courts may overrule previous decisions in response to changes in socio-economic factors in the community or in the public interest, although they may not change a statute. Parliamentary sovereignty under the UK political system guards against this practice. However, in civil law systems in order to change the law which is deeply bedded in statutory provisions government red tape is required with the result that change is formal and time consuming.
The reliance on statutes in civil law systems as opposed to applying great weight to precedents in common law systems speaks directly to the separation of powers in each jurisdiction. It can be said that the courts through the judiciary acts as a mediator between the government and its citizens. Under the civilian system where judges merely interpret the statutes handed down by the state it is conceivable that judges merely represent the government ensuring that the citizens adhere to the will of the government.
This aspect of the separation of powers is further manifested by the notions of jury trials. As Monnet and Schuman argue:
“A salient difference in civil procedure is the jury trial in common civil law countries and particularly in the Us system, where it is considered ‘a symbol of popular participation in the administration of justice.’”
In civil law jurisdictions civil law is regarded as far too difficult to entrust to ordinary citizens and should be left to the auspices of the judge alone.
The consequences of relying on statutes in civil law jurisdictions have impacted other areas of law particularly the compensatory culture. It is submitted that in the absence of judge’s discretion, compensation is therefore set by codes and leaves little room for creative manipulation of damages. This is evidenced by the civil law system’s general position against punitive damages. Damages are by and large regarded as a mean of restoring the injured party to his or her position as far as it is possible to do so. It therefore follows that punitive damages are entirely inconsistent with the nature and purpose of compensatory damages as provided for in statutes and codes.
The stance against punitive damages is further evidence of the limited role of attorneys and parties in the administration of justice in civilian law systems. With the emphasis on codes and statutes attorneys and disputants have very little to do in a trial in the way of convincing the judges of the appropriate measure of compensation or judgment. This is particularly so because statutory governance leaves very little room for judicial discretion. Judge’s function within very strict parameters as manifested by the position against punitive damages.
v) Is One System Better than The Other?
While common law systems appear to side with the values conducive to western democracies, there are some academics that argue in favour of the civilian system which places much reliance on judges’ control of the process. By allocating to the practicing attorneys and their clients a more passive role in the litigation process, it is argued that legal reform can be facilitated much more effectively. As it is, in the common law system, lawyers and their clients play an active role in the adjudication process and formulating change is systematically impossible since a large body of lawyers cannot be reformed with the ease that judges can be restructured.
Be that as it may, a reform in any common law system as old and settled as that of the UK and many of its former colonies that takes away the practice and role ascribed to judges, attorneys and disputants is contrary to the dynamics of the common law system itself. As previously noted, the common law as it is in the United States is regarded as one of the tools necessary for the fair and proper administration of justice. The laws and practices itself have devolved around the specific role of the judges and the participants as they are for hundreds of years. In order to change the role of the judges the system of precedent making will be impacted.
If the role of the judges in common law systems are going to be changed to reflect the ultimately investigative role of the judges in civil law jurisdictions it will impact upon the source of law. Statutes will have to replace common law, by doing so hundreds of years of precedents will be have to be codified. Legal institutions will have to change their curriculum and years and years of legal theory would have to revamped and dispensed with. In the final analysis judicial reform in the common law system is entirely impractical.
Moreover the roles of judges in common law systems is reflected in the structure and functions of the courts system. Any reformation of the judiciary would rebound to the courts’ structure. In common law legal systems the courts are set up in what can be defined as an integrated system. In this sense courts have jurisdiction over various different causes of actions whether they are criminal, commercial, equity, chancery or constitutional. In civilian law countries not only do codes function to divide the law so do the courts and in this sense the courts are divided among the different causes of actions. In other words civilian systems establish specific courts to adjudicate over specific legal issues. They are not integrated as they are in the common law systems. Commercial courts adjudicate over commercial matters, criminal courts adjudicate over criminal matters and so forth.
Another significant bar to reforming the common law judiciary to bring it in line with the judiciary in the civilian law system is the nature and method of the trial process. Trials under a civilian law system are conducted under a series of major events whereas in the common law system are comprised of minor interlocutory events culminating in the major trial of the issues. During these interlocutory processes trial judges are not concerned with the actual resolution of the substantive issues as they are in the civil law process. The substantive law will only arise if an application for summary judgment is made. At each stage in the civilian law process the judge is at all times concerned with the resolution of the dispute. In the end, far too much is vested in the current practice under the common law system with respect to the role of judges to warrant changing the judiciary so that it comports to the role of judges in the civil law system.
The major differences between the civilian legal system and common law system is obviously found in the sources of law and the application of those laws. It is impossible to state with any degree of certainty which system is better than the other. Both systems have developed over hundreds of years and have facilitated the aims of justice in both families of law. The only fair conclusion is that while these systems of law are vastly different from one another they have vastly similar aims and objectives. Those aims and objectives are the administration of justice in a manner that is conducive to its political and socio-economic policies. What may be deemed as just and reasonable in one system may not be so in another. What is certain is that both systems are firmly steeped in tradition and history.
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