There are two major legal systems used in the world. Namely, common law and civil law. Countries that have common law as their legal system are the UK, the USA, New Zealand, Australia, Hong Kong and so on. On the other hand, most of continental Europe, from Spain to Turkey are civil law countries, whose legal systems derive from the Roman Empire. In this essay I shall compare the two systems in a nutshell.
Arguably one of the world’s most prosperous empires was the Roman Empire, which shaped so many nations throughout history. They affected so many people across Europe not only in linguistics but also in terms of laying down the foundations of modern civil law. So, what is civil law? Civil law in brief, is a system whose legal rules and norms are largely, if not completely, codified in law.
When a lawyer or even a lay person is keen to learn about the rights and obligations of people in a civil lawbased country, they turn to the codes which are usually enacted by a democratic parliament. In such countries the aim is to codify everything in uniform so it is easier to refer to, hence narrowed down. Laws are certain, clear and neat. When courts hear disputes or make resolutions, although they take the literal meaning of what has been legislated, if the literal meaning does not make sense, they take a purposive approach. The golden rule for courts is to ask, what did the legislature deem the purpose behind such rule or provision or what was the rule intended to cover?
Moreover, when a trial is being heard at courts, the judge’s ultimate aim is to seek the truth. Therefore, if for instance he/she is not satisfied with how the trial is proceeding, he/she is having the capacity to make separate inquiries that could slightly divert from the case and the submissions, which is why it is quite different from the common law system, which I shall elaborate below.
Common law is a well-established legal system that comprises precedent, also often referred to as case law or judge made law, which is a build-up of court decisions that are referenced as guidance in similar future cases, and statutory law, which is usually acts of parliaments. Parallel to this, the function of Equity is also vital in common law systems. Identified by Aristotle, Equity is to facilitate a correction of law where it is defective owing to its universality(1). When common law is too rigid to achieve justice, Equity steps in, in order to resolve injustice. The source of English Equity is that it was principally conscience based and discretionary and in that it constituted a distinct legal tradition.
Highlighted by Lord Browne Wilkinson in Westdeutsche Landesbank Girozentrale v Islington London Borough Council (2), Lord Browne-Wilkinson recognised that “Equity operates on the conscience of the owner of the legal interest» (3). Over time, equity has blended in the system of common law and does not constitute a separate legal tradition in the sense that it previously had. Rather it supplements the gaps that case law and legislation create and aims to resolve injustice based on its equitable principles.
On the other hand, in terms of the court room culture in common law countries, in comparison with civil law jurisdictions, there is a more adversarial atmosphere. What does an adversarial court mean? In brief, barristers representing clients in common law countries submit arguments that will advance their clients’ cases in their best interest. As there are usually two sides to a case and two barristers representing it, a rival takes place between the two. The judge is bound by the ssubmissions and arguments of both sides and must decide in favour of one of them. The standard of proof in civil law matters is the balance of probabilities. Is it more likely than not that this has occurred? Wheras, for criminal law cases, the standard of proof is beyond reasonable doubt.
Contrary to civil law jurisdictions, the judge in common law countries does not have a separate role of seeking justice, but rather bases his/her decision on the arguments of the case presented before him/her (4).
Both civil and common law systems are currently used throughout the world. Despite there being nuances between the two systems in terms of their traditions or logical structures, they share many notions such as the concept of good faith, fairness, upholding the rule of law and having a humanitarian approach to human rights and liberties.
1 Aristotle, Nichomachean Ethics, Book V Chapter 10
2 12  AC 669.
3 13 Ibid, 705.
Categorías:Derecho Civil, Derecho Constitucional, Derecho Internacional, Sin categoría