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Differences between common law and civil law

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by Joseph Hazelbaker

Common law and civil law are the two prominent legal systems in the Western world. This article title seeks an answer to the differences between these two fundamentally different legal theories or systems. In a nutshell, "common law" is the law created by judges on a case by case basis and civil law is the law created by a civil authority to be applied to all cases (such as a statute or constitution). A more detailed explanation follows: COMMON LAW

The common law is the body of law that develops over time through the decisions of judges deciding outcomes on a case by case basis, rather than from statutes or constitutions. In this system, past cases and their decisions are relied on to determine what the outcome ought to be in a current case. This application of past decisions to current cases is called precedent. What is confusing to those in the United States is that this Common Law or "judge-made" law is what develops the civil law of each state. The civil law in this context (as opposed to the Civil Law context intended by the article title), is the law that address disputes between individuals. This is distinct from the body of law called criminal law that addresses the penalties imposed upon citizens for a violation of a governmental rule. Here, civil law, the body of law, as opposed to Civil Law, the system of law, is like the difference between Democrat, the politician, and democratic, the theory. Confusing, but important to differentiate. So now that you know that when someone talks about "Common Law," they are referring to the law judges create when they decide a case, and that, in the United States, this type of "judgemade" law makes up the bulk of our civil law , which is one of two major types of law in the U.S. (the other being criminal law). You also know that when we talk about "Civil Law" in the next section, we are not discussing the civil law of the U.S. CIVIL LAW Civil Law or Roman Law is second prominent legal system in the Western World that is derived from the Roman Empire. The Civil Law system described a system whereby the law of the land derives from the civil authority or the state. Typically, this was written law that did not relate to any particular present controversy or dispute, but was intended to anticipate future disputes and guide behavior to avoid them, or, when that guidance failed, to set forth the penalties or redress that would be available for the failure to so abide. The Civil Law system is still the foundational system in many parts of the world, including continental Europe and Latin America. THE U.S. HYBRID The legal system in the United States is said to be a common-law system, based upon the system of England from which the United States borrowed heavily upon its establishment. In fact, the U.S. is a hybrid, heavily incorporating the common law system in it's civil law and building it's criminal and administrative law systems on a civil law (or statute) driven model. Underpinning both the civil and criminal law systems is the reliance on precedents and adhering to the decisions of judges and their interpretations of statutes made in previous cases. Forty-nine U.S. states adopt a common law approach with one state, Louisiana, using a civil law system.

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Differences between common law and civil law

1 of 6 by Tom Alisankus COMMON LAW Back in the days of Matt Dillon and Festus (for those of you who have ever watched "Gunsmoke"), there was no such read more

2 of 6 by Dr. Anderson An important point to be made in regard to the system of Common Law, is that rulings are based upon the application of case read more

3 of 6 by yackity yack The difference between common law and civil law is primarily a location issue. Both of these laws are born out of decisions read more

4 of 6 by AMERICAN MAN mental / moral what should be standard conscience and that articulated with more precision and refined statutory regulation. Problem read more

5 of 6 by Joseph Hazelbaker Common law and civil law are the two prominent legal systems in the Western world. This article title seeks an answer to read more

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The term common law is ambiguous. It can be used to describe the entire system or it can be used to refer to the case law within a common law system, to refer to the system as a whole a better term might be the 'adversarial system'. This is what we have in England, the United States, Australia, Hong Kong and South Africa amongst others. The main feature of this system is that there are TWO types of law which are binding (case law and legislation) whereas in the civil system, past cases can be taken into account but they are not binding. Another significant difference is that in civil law countries the judge plays a much more important role in determining proceedings, they form part of the case. The Adversarial system emphasizes the debate between the two parties and the judge merely directs the jury and ensures that etiquette is followed. Also, in a civil system academic articles can be considered whereas in our adversarial system an academic article is essentially useless until it is included in legislation. These are the most significant differences

"Thus, the difference between civil law and common law lies not just in the mere fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes

and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general rules and principles of the code, often drawing analogies from statutory provisions to fill lacunae and to achieve coherence. By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly."

Byrd

This is a very generic answer - it's been a long time since I've studied Legal.... hope it helps anyway! Common Law is when a person has committed a crime against the state (eg robbery, rape, murder). Common law is often punishable by prison sentences and the like. Civil Law is when a person has committed a crime against another person (eg breach of contract, trespass, etc) . Civil offences are usually punishable by fines and the like. There are cases, of course, that can be dealt with under both Common and Civil Law. For example, if you beat someone up, you can be charged under common law (as it is considered a crime against the state - that whole 'danger to society' thing), and the person you beat up could actually sue you in a Civil case for any injury, expenses, loss of income on their behalf that has resulted from your assault. Hope that made things a little clearer!
Jan 14 03, 2:50 AM

Tabby Tom

In England, common law is the customary law of the land, as distinct from statute law which is made by Parliament. Common law covers both criminal and civil matters: for example, murder is a crime at common law. Civil law usually means that part of the law dealing with non-criminal matters, e.g. the law of contract, tort, etc. The term is also used to mean Roman law and modern legal codes derived from Roman law (e.g. most of the legal systems of continental Europe).
Jan 14 03, 10:58 AM

Jimmy

The above answers are somewhat confused. There are two distinctions to make. The UK and its former colonies have Common Law systems whereas France, Germany etc have Civil Law systems. The difference is that a Civil Law country has a body of law (passed by Parliament) that can be referred to in each individual case and there is no such thing as binding precedent. In Common Law systems the law continually evolves in addition to being amended by laws passed by Parliament. If a higher court has previously interpreted a statute in a particular law this cannot be overridden by a lower court - the decision of the higher court is a binding precedent. The above answers have confused this with the distinction between criminal and civil

law. Criminal law relates to matters like murder, theft etc, whereas civil law (in these terms) relates to contractual disputes etc.

This article is about the general legal concept. For the book by Oliver Wendell Holmes, Jr.., see The Common Law. Common law, also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law,[1] on the principle that it is unfair to treat similar facts differently on different occasions.[2] The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. 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). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent.[3] Thereafter, the new decision becomes precedent, and will bind future courts. In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only nonbinding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems. Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages,[4] and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Malaysia, Singapore, Pakistan, Sri Lanka, India,[5] Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia.[6]

[edit] 2. Common law legal systems as opposed to civil law legal systems
This connotation differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions.[9] Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes. By contrast, in civil law jurisdictions (the legal tradition that prevails in, or is combined with common law in, Europe and most nonIslamic, non-common law countries), judicial precedent is given less weight (which means that a judge deciding a given case has more freedom to interpret the text of a statute independently, and

less predictably), and scholarly literature is given more. For example, the Napoleonic code expressly forbade French judges from pronouncing general principles of law.[10] As a rough rule of thumb, common law systems trace their history to England, while civil law systems trace their history to Roman law and the Napoleonic Code. The contrast between common law and civil law systems is elaborated in Alternatives to common law systems, below.