What is the difference between common and civil law?
Common law gives judges an active role in developing rules; civil law is based on fixed codes and statutes
By S.B.
IN THE summer of 2013 British royalists were eagerly awaiting the birth of the Duke and Duchess of Cambridge’s first child. If the couple had had a girl instead of bonny Prince George, she would have been the first daughter to be able to accede to the throne ahead of any younger brothers. That is thanks to a law enacted in 2011 that changed the rules of royal succession. The previous law that sons took precedence over older sisters was never written down, but was instead part of English common law, the basis of the country’s legal system. But just what is common law, and how does it differ from the civil-law system used in some other countries?
Common law is a peculiarly English development. Before the Norman conquest, different rules and customs applied in different regions of the country. But after 1066 monarchs began to unite both the country and its laws using the king’s court. Justices created a common law by drawing on customs across the country and rulings by monarchs. These rules developed organically and were rarely written down. By contrast, European rulers drew on Roman law, and in particular a compilation of rules issued by the emperor Justinian in the 6th century that was rediscovered in 11th-century Italy. With the Enlightenment of the 18th century, rulers in various continental countries sought to produce comprehensive legal codes.
Today the difference between common and civil legal traditions lies in the main source of law. Although common-law systems make extensive use of statutes, judicial cases are regarded as the most important source of law, which gives judges an active role in developing rules. For example, the elements needed to prove the crime of murder are contained in case law rather than defined by statute. To ensure consistency, courts abide by precedents set by higher courts examining the same issue. In civil-law systems, by contrast, codes and statutes are designed to cover all eventualities and judges have a more limited role of applying the law to the case in hand. Past judgments are no more than loose guides. When it comes to court cases, judges in civil-law systems tend towards being investigators, while their peers in common-law systems act as arbiters between parties that present their arguments.
Civil-law systems are more widespread than common-law systems: the CIA World Factbook puts the numbers at 150 and 80 countries respectively. Common-law systems are found only in countries that are former English colonies or have been influenced by the Anglo-Saxon tradition, such as Australia, India, Canada and the United States. Legal minds in civil-law jurisdictions like to think that their system is more stable and fairer than common-law systems, because laws are stated explicitly and are easier to discern. But English lawyers take pride in the flexibility of their system, because it can quickly adapt to circumstance without the need for Parliament to enact legislation. In reality, many systems are now a mixture of the two traditions, giving them the best of both legal worlds.
This first two lines of this piece were updated on December 2nd 2015 to change tenses and reflect the birth of Prince George.
