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
We all know that teaching legal English often poses a challenge. Legal English is becoming a universal language used by law firms and companies in their international transactions, but it is also used in legislation, academic texts and, last but not least, in contractual and commercial arrangements. As you may know, the common law is the legal system of Anglo-American countries which originated in England and developed though court decisions made by judges. This historical influence has had a lasting effect on the legal systems of commonwealth countries too – Australia, Canada, India, New Zealand, South Africa, Kenya and indeed Ireland, which is no longer a commonwealth country, still uses the common law introduced to us by our British neighbours.
By contrast, the continental legal system, originating from Roman law, is based on legislation published in the form of various acts and codes. A look at the map below will give you a good indication of the influence of both common (orange) and civil (blue). Notice also how many post-colonial countries in Africa and the middle East have adopted a hybrid system.
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. The standard common law definition of murder is the "killing of a human being with malice aforethought" and both the actus reus and mens rea must be ascertained in order for the the defendant to be found guilty.
To ensure consistency, courts abide by precedents set by higher courts examining the same issue. Thus, case precedence, or following judgements, is a synonymous feature of the common law system.
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 such as France, Germany and Italy, 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 trained 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.
