Differences between Civil Law and Common Law

Differences between Civil Law and Common Law

Two primary legal traditions are used in most countries: civil law and common law. Approximately 150 countries practice civil law, while common law is used in around 80 countries. The civil law tradition developed in continental Europe and is based on Roman law. In contrast, the common law system originated in England during the Middle Ages. The main distinction between the two systems is that common law relies heavily on judicial precedent, whereas civil law is primarily based on codified statutes.

Comparison table

Feature	Civil Law	Common Law
Primary Source of Law	Comprehensive legal codes and statutes enacted by a legislature.	Judicial decisions (case law) and legal precedents; statutes supplement these.
Role of Precedent	Judicial decisions are not binding; they have a persuasive role but do not create law.	The doctrine of stare decisis makes prior decisions by higher courts binding on lower courts.
Role of the Judge	The judge's role is to establish the facts of a case and apply the provisions of the applicable code. The process is often described as inquisitorial.	The judge acts as an impartial referee between opposing parties in an adversarial system, applying precedent to the facts.
Trial Procedure	Judges take an active role in the investigation, calling witnesses and gathering evidence.	Lawyers for the opposing parties are responsible for presenting evidence and examining witnesses.
Constitution	A written constitution is almost always present.	A written constitution is not always required (e.g., the United Kingdom).
Geographic Distribution	Most of Europe, Latin America, and parts of Asia and Africa.	The United Kingdom, the United States (except Louisiana), Canada, Australia, and other former British colonies.

Venn diagram comparing Differences between Civil Law and Common Law

Judicial precedent

A defining feature of the common law system is the doctrine of judicial precedent, or stare decisis, which means "to stand by things decided". This principle requires lower courts to follow the decisions of higher courts in cases with similar facts. This practice promotes consistency and predictability in legal outcomes. Judges in this system play a role in shaping the law by interpreting statutes and applying precedents to new situations.

In civil law systems, there is generally no principle of binding precedent. The primary source of law is a comprehensive and systematized set of legal codes. Judges are expected to apply the law as it is written in these codes. While past judicial decisions may be considered and can be persuasive, especially when a consistent line of similar cases has developed, a single past ruling does not bind a judge from reaching a different conclusion in a future case. The function of the court is seen as one of interpretation rather than lawmaking.

Legal proceedings

The role of judges and lawyers differs significantly between the two systems. In civil law jurisdictions, proceedings are often inquisitorial. A judge or panel of judges is actively involved in investigating the facts of the case, which can include questioning witnesses and directing the evidence-gathering process. The goal is for the judge to ascertain the truth.

In common law jurisdictions, proceedings are adversarial. The judge acts more like an umpire, ensuring procedural rules are followed, while the lawyers for each party present their cases and challenge the opposing party's evidence. Each side is responsible for bringing forward evidence and witnesses to support its claims. Juries are more common in common law systems, particularly in serious criminal cases, to act as the finders of fact, a role typically held by the judge in a civil law system.