Comparison of civil and common law
Civil Law -A history
1. Civil law originated from the Roman law-jus civile-law for the citizens-jus gentium-for
foreigners.
2. Roman law -development-from the 12 tables to Justinian Codes.
3. Initially there were strict rules and limited procedures which caused hinderance to justice.
Hence the office of praetor was established which made liberal influences felt and gave
concrete application. Jus civile was amended and justice and equity of remedies and
procedures were granted
4. Gradually these praetors gained prominence and were recognized for their highly sought-
after skill of interpreting the written text (law of the land). The emperors and magistrate
took their advice
5. During the same time an effort to codify existing case decisions were being made. Justinian’s
code compiled the varying laws of the land- great jurists worked on it.
6. However Roman Law was eclipsed in the Middle ages due to various developments in
Europe. However, it made it reappearance in the 18 th and 19th century and it garnered great
appreciation from eminent jurists and scholars. Roman Law reached its pinnacle when
private laws (derived from the principles of Roman Law) were codified in parts of France and
German
Common Law -A history
1. Common Law originated in England amidst feudal incidents in the region. Settlement of
disputes were purely local in nature and each region was oblivious of what was happening
elsewhere. Judgements were pronounced on the basis of the personal status of the people
involved
2. When the King wanted to exercise his authority (to establish a central power) over the legal
system he ran into serious conflicts. Since King was the sovereign judge and the source of
justice and he wanted to preserve peace around and he established courts appointed judges
and send them around the circuits. Although they faced flak initially, they were successful in
establishing a uniform legal system. They created a common law for the land, hence the
name.
3. All these developments happened much before the Parliament came into existence-
legislations passed by the Parliament- the courts developed a deep jealousy towards the
Parliament as they had to apply statutory provisions to the cases that came before them.
The courts maintained their authority in matters that questioned the validity of law.
4. The third development was that of the law of equity. The disputes that came before the King
were handled by the chancery and later this led to the formation of the court of chancery
which gave remedies for harsher punishments and established procedures. An independent
law distinct from the existing one came into being and was called the law of equity
Legislation as the Judicial decisions as Legislations in common Judicial decisions in
basis for civil law the basis for common law civil law
law
Distinct Consisted of Legislations got Actually, when
feature of all laws stronghold in a court applies
common law generalized England after a law, it has to
Duly formed out of the the growth of interpret that
statutes with judicial the Parliament. law; in the
proper decisions. Parliament process of
legislation and new acted as a interpretation
they are problems counterbalanc the court may
referred to as brought new e to king and well extend
codes case and court’s power the scope of
enriched the the law con-
common law. siderably
beyond that
originally
contemplated.
By this
method of
interpretation
and by filling
in gaps where
the written
law is silent or
insufficient,
the civil law
court can be
considered as
"making" law,
interstitially
The civil code Judicial The courts In the civil law
is a set of decisions maintained a system, courts
general were both hostile attitude are not bound
principles source and towards these to follow
carefully proof of law. legislations. In previous
drafted and What gave order to curb judicial
closely stability and these Judicial decisions.
integrated. continuity to tactics, Each new
They are not this system legislation used decision must
a list of was the the art of be grounded
special rules doctrine of describing the on the
for particular "precedents”. succinct details authority of
situations. however, this the legislative
was limited to text which
the ratio provides the
decidendi as basis of
they liked to continuity and
exercise their stability
prerogative
powers.
Striking However, if In some
feature is the judge felt countries like
liberal the other France and
interpretation way, he could Belgium, the
of the statute. "distinguish" practice has
the previous been
decision and consolidated
leave its that when a
application certain point
limited to the has been
specific fact consistently
situation decided in the
which it con- same way by
trolled. In an appreciable
extreme number of
situations, a cases, it
court could becomes
brand an "jurisprudence
earlier case as constante"
erroneous and is
and considered
"overrule" it, binding in
thereby future cases.
providing a This serves to
new stabilize the
precedent for interpretation
the point of law
involved.
A significant Precedents In addition,
feature about gave stability after a second
legislation in and "cassation"
modern civil continuity to (judgment of
law is the the legal lower court
importance system. annulled and
attached to Distinguishing case
the and remanded for
preparatory overruling retrial) by the
works and the gave highest court
draftsmen's flexibility and of appeal in
comments, as permitted these two
well as the adjustment. countries, the
parliamentary lower tribunal
discussions in is obliged to
connection accept the
with its initial solution
formulation indicated by
the higher
court
Comparative study
Doctrine materials
In civil law countries there are broad discussions on legal principles and they formulate general
principles on basic codes and legislation. In the civil law, the doctrine is an inherent part of the
system and is indispensable to a systematic and analytical under civil law
In common-law countries, there is not as large a quantity of doctrinal writings, and these are likely to
consist of analyses of decided cases with the object of classifying them and distinguishing the rules
they represent. e law. As authorities in their pleadings and in their judgments, the attorneys and the
judges primarily cite previous cases rather than works of doctrine.
Legal Education
Research
In the civil law system, inquiry usually begins with the codes and other legislation, then it seeks out
the commentators and the treatises, and only in third place do cases come in for con- sideration and
evaluation. Furthermore, without the rule of precedent and the principle of stare decisis, prior
judicial decisions are not necessarily accepted as weighty authorities. Actually, each new decision
rests primarily on the original code or legislative text.
In the common law, as such, research is focused essentially on prior judicial decisions, as a result of
the very nature of the system. Of course, legislation is controlling where applicable, and it has to be
examined to determine questions of applicability, but here again the judicial interpretations become
the binding authority whereas in the civil law tradition, each case is related back essentially to the
legislative authority.
