Civil Law Common Law
Legal System Legal system originating in Europe whose most Legal system
prevalent feature is that its core principles are codified characterized
into a referable system which serves as the primary by case law,
source of law. which is law
developed by
judges through
decisions of
courts and
similar
tribunals.
Role of judges Chief investigator; makes rulings, usually non-binding Makes rulings;
to 3rd parties. In a civil law system, the judge’s role is to sets precedent;
establish the facts of the case and to apply the referee
provisions of the applicable code. Though the judge between
often brings the formal charge lawyers.Judges
decide matters
of law and,
where a jury is
absent, they
also find facts.
Most judges
rarely inquire
extensively into
matters before
them, instead
relying on
arguments
presented by
the part
Countries Spain, China, Japan, Germany, most African nations, United States,
all South American nations (except Guyana), most of England,
Europe Australia,
Canada, India
Constitution Always Not always
Precedent Only used to determine administrative of constitutional Used to rule on
court matters future or
present cases
Jury opinion In cases of civil law, the opinion of the jury may not Juries are
Civil Law Common Law
have to be unanimous. Laws vary by state and country. comprised only
Juries are present almost exclusively in criminal cases; of laypersons
virtually never involved in civil actions. Judges ensure — never
law prevails over passion. judges and, in
practice, only
rarely lawyers
— and are
rarely
employed to
decide non-
criminal
matters outside
the United
States. Their
function is to
weigh evidence
presented to
them, and to
find fa
History The civil law tradition developed in continental Europe Common law
at the same time and was applied in the colonies of systems have
European imperial powers such as Spain and Portugal. evolved
primarily in
England and its
former
colonies,
including all but
one US
jurisdiction and
all but one
Canadian
jurisdiction. For
the most part,
the English-
speaking world
operates under
common law.
Sources of Law 1. Constitution 2. Legislation – statutes and subsidiary 1. Constitution
legislation 3. Custom 4. International Law 5. [Nota (not in the UK)
bene: It may be argued that judicial precedents and 2. Legislation –
conventions also function within Continental systems, Statutes and
Civil Law Common Law
but they are not generally recogn subsidiary
legislation 3.
Judicial
precedent –
common law
and equity 4.
Custom 5.
Convention 6.
International
Law
Type of Inquisitorial. Judges, not lawyers, ask questions and Adversarial.
argument and demand evidence. Lawyers present arguments based Lawyers ask
role of lawyers on the evidence the court finds. questions of
witnesses,
demand
production of
evidence, and
present cases
based on the
evidence they
have gathered.
Evidence Taking Evidence demands are within the sovereign inquisitorial Widely
function of the court — not within the lawyers’ role. As understood to
such, “discovery” by foreign attorneys is dimly viewed, be a necessary
and can even lead to criminal sanctions where the part of the
court’s role is usurp litigants’
effective
pursuit or
defense of a
claim. Litigants
are given wide
latitude in US
jurisdictions,
but more
limited outside
the US. In any
event, the
litigants and
their lawyers
undertake to a
Civil Law Common Law
Evolution Both systems have similar sources of law- both have Both systems
statutes and both have case law, they approach have similar
regulation and resolve issues in different ways, from sources of law-
different perspectives both have
statutes and
both have case
law, they
approach
regulation and
resolve issues
in different
ways, from
different
perspectives
