Differences between Common law and Civil law

First and foremost, lets look in depth on the differences between these two laws in regards to the sources of law. Codified law does not merely exist in common law, but is even of a certain importance. Thus common law states have also codified laws, which derive from a legislative process and which courts have toconsider in their judgments as well and beside existing judge-made precedents. On the other hand some of the Continental European legal systems areas of law are entirely case law, e.g. French law of torts. In addition, also in civil law legal systems the increasing numbers of high court decisions overlay the codified law more and more. Moreover it is remarkable that there are some legal systems,which are related traditionally to civil law, but which also as a tradition have noclassical codes as most of the civil law legal systems have. Despite this prevalent view it is clear that in both legal traditions codes do exist and are applied by practitioners, but that these codes differ in their style:While civil law codes and statutes are mostly concise and do not provide definitions but state principles in broad, general phrases, common law codifying statutes provide detailed definitions and each rule sets out lengthy enumerations of specific applications or exceptions. Next up is the difference in the principle of precedents and doctrine of stare decisis. As another distinctive feature the principle of precedents may be considered, i.e. 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. So civil law judges may be primarily bound to codes and reason, while common law judges are subject to the so called doctrine of stare decisis and thus in the first instance are bound by precedents rendered by higher courts. According to that, common law has a more hierarchical structure. First of all, to establish some understanding, the doctrine of stare decisis should be explained very briefly. Stare decisis is an abbreviation of the sentence stare decisis et non quieta movere, i.e.: stick to decisions. The doctrine of stare decisis has two components, a vertical and a horizontal one. The vertical component says that judges of lower courts are strictly bound to precedent decisions of higher courts, even if the lower court considers the decision is not right. However, the inferior judges are free to express their opinion that they consider the binding precedent as wrong and they can also suggest an appeal. According to the horizontal component of the doctrine of stare decisis, precedents are binding not only for lower courts, but also for current decisions of the court that rendered the precedent, whereas although the judges are bound to the result of the precedent, they do not have to stick to the reasons given in the precedent case. A court decision is a precedent if it should be leading for all future cases; this implies that the court decision contains an abstract guideline, which is called its rationale and that this rationale can be ascertained by other courts and scholars. A precedent is binding until it is overruled by a decision of a higher court or until it is overridden through a statute. A higher court can also reconsider and overrule its own previous decision. On the one hand common law judges do not have to apply a precedent, if they point out that the alleged precedent is significantly different from the current case and therefore is not binding. This process of pointing out the non-application of a precedent is called distinguishing and can be mainly based on two reasons: First, there does not exist any similarity between the current case and the precedent case, e.g. because the precedent is about another area of law and the judge denies an analogy.Second, the judge satisfies himself that even if he had decided the precedent case and had decided similarly to the actual precedent decision he is, according to logic, not forced to make another decision as he likes to do now, e.g. because it turns out that the facts of the cases are significantly different. And in addition also a judgment having been decided per incuriam does not have to be followed as precedent. Literally translated as through want of care, per incuriam refers to a judgment of a court which has been decided without reference to a statutory provision or earlier decision which would have been relevant and binding. The significance of a judgment having been decided per incuriam is that it does not then have to be followed as precedent. Even though such a judgment is a rare exception, lower courts are free to depart from an earlier judgment of a superior court where that earlier judgment was decided per incuriam. On the other hand the courts in civil law countries at least feel they are bound by the decisions of the higher courts as well. Thus it is not entirely correct to assume that common law

judges are strictly bound to the authority of higher courts while civil law judges are only bound to codes and reason. There are also differences in the method of legal thinking and finding of justice between these two laws. Firstly, common law is dominated by focusing on each single case, so called reasoning from case to case. Generalizations or principles are only developed through deciding single cases. In this respect the principle of precedents is truly typical for common law. The central role in common law is played by the judge, who thinks and decides historically, concretely, goes by facts and without any noticeabledogmatic conceptual construct. In contrast civil law thinking means to develop abstract principles regardless of single cases and to apply these abstract principles to the facts of the case by a process of subsuming. Thus in civil law the abstract rule, whose applicability to every single case has to be checked, takes the center stage. This method requires anticipating and solving of problems prior to their appearance, while common lawyers are rather in a position to wait and see and react to the problems when they appear. Therefore it does not surprise that in civil law the dogmatic, abstractand norm-based thinking scholar dominates rather than the judge. So in civil law it is doctrine including the codifiers reports about the legislative process that has priority over jurisprudence while in common law it is the opposite way around. While the function of doctrine in civil law to provide all practitioners, including the courts, with a guideline for handling and deciding of specific future cases by developing basic rules and principles from the numerous legal treatises and to some extent also from cases, it is the rather modest function of doctrine in common law to find differences and similarities in decided cases and to extract specific rules from decided cases. The appointment or selection of judges also differs.As for common law countries, judges of the higher courts, are typically selected and appointed only from among experienced practicing lawyers By contrast it may surprise common lawyers when telling them that it is quite usual in civil law to appoint young highly skilled but inexperienced graduates tojudgeships. It is also not unusual for recently appointed judges to decide cases in lower courts as sole judges immediately after their appointment. Now, lets go through the procedural differences which is the adversarial vs. inquisitorial system.Court proceedings in common law may be described at least in private law as strictly adversarial.In this system the attorneys are responsible for presenting the facts of the case, the positions of each party and the legal views including all relevant precedents. In an ideal common law procedure the judge has the function only to manage the proceeding, to review all facts of the case and legal views presented to him and finally to decide the case on that basis, or when the case is tried by a judge andjury, to sum up the evidence and the legal principles for the assistance of the jury. Civil law proceedings apart from public and criminal proceedings may be described as inquisitorial in contrast with common law proceedings. Thus civil law judges have many functions which in common law the attorneys are responsible for. For instance in civil law the judge is generally responsible for the oral questioning of the witnesses in taking evidence. Thereby the judge asks the witnesses about the factual issues of the case, which are alleged and presented by the attorneys in their pleadings and which were offered for the evidence. The attorneys then normally have only the opportunity to raise additional questions. In common law the parties respectively their attorneys are obliged to bring in allrelevant evidence. This includes taking of evidence by questioning the parties own witnesses and also questioning the witnesses brought forward by the opponent. A method of questioning witnesses by attorneys as described is unknown to civil law and is called cross-examination. Thereby both parties call their witnesses and expert witnesses. The party which calls a witness has the right to question this witness first. Because the answers of this own witness will in most cases be favorable for the party that brought it forward, afterwards the opponent has the right to question the other partys witness. Having said that, another significant difference between adversarial and inquisitorial system is the manner in which they deal with experts. While in common law, as explained above, each party can bring forward and question its own expert and the judge only has to decide which expert is more convincing, in civil law it is the judge who in most cases appoints the expert, often a sole witness, and then accepts his opinion.