DIFFERENTIATE THE TWO MOST-APPLIED LEGAL SYSTEMS: 'COMMON LAW' AND 'CIVIL LAW'

There are five generally admitted legal systems worldwide: Civil Law, Common Law, Religious Law, Customary Law, and Mixed legal system. Each has its specific ground and develops in different typical countries. This article will define the notion of 'legal system' and delve into 'Civil Law' and 'Common Law' to figure out the differences in origins, trademark characteristics, and many other things.

1. WHAT IS 'LEGAL SYSTEM' MEANING?

Before defining the meanings of those, what is the 'legal system' and its basis? A legal system is a system that claimed one country's operation and the process of enforcing the law. In essence, it's a law category that manifests the internal structure and external expression form, which encompasses a set of legal rules, procedures, institutions, profession, and legal principles. Its existence identifies the desirable autonomy of the objects in any society. Every country put a different legal system in practice, still consistent with the regime and ideology that society is aiming for.

Five legal systems were considered, of which three major legal systems available are Civil Law, Common Law, and Religious Law. Nevertheless, most nations choose Civil Law and Common Law as the main legal traditions nowadays. This article will focus on defining and differentiate Civil Law and Common.

2. THE ORIGINS:

2.1 Civil Law:

Civil law's origin is believed that was formed from Rome's legislations and Napoleonic Code. The term 'civil law' actually derives from the Latin phrase: ius civile, which means the applicable object of the law is the Roman cives (citizens). In the sixth century, it was found commissioned by Emperor Justinian in an enormous compilation of Roman Law. This compilation soon has been mislaid to the West but still be re-detected. It became the basis of legal procedure for Italian in the eleventh century, and the sixteenth century was called by the name 'Corpus iuris Civilis subsequently. 

Ultimately, to comply with contemporary modifications, erudite European legal scholars incessantly adapted the master of Rome's legislation in Corpus Juris Civilis. This code also influenced medieval scholars of Catholic Church law, or known as 'canon law.' Civil law and canon law became the basis format taught in regular-educational law universities by the late Middle Ages. Naturally, it formed a general legal thought of the European majority. In other words, today's European 'civil law' development is synonymous with the growth and evolution of ancient Roman Law.

2.2 Common Law

The notion of 'common law' hove a sight since the Middle Ages in England, and is also known as 'Anglo-American Law,' emerged from the centralization of the King's power. The Norman Conquest in 1066 led to the consolidation of power and institutions established by the royalty. They promulgated a system of writs and royal orders as forms of legal action, provided a specific remedy for different frailty. The highly formalized writs of the royalty sometimes kept the law too rigid to brought in truly equitable verdicts and done justice.

In that case, a new 'court of equity,' or 'the court of Chancery' (whereas this was the court of the King's chancellor) was born to disentangle and make the rules more flexible. Common-Law was just one out of many other laws (canon law applied by Church courts, customary law applied by rural and urban courts, Roman law applied by Chancery, and maritime courts). It wasn't until the seventeenth century that common-law officially followed and was admitted by the Parliament, declaring common-law definition and other laws' subsidiarity.

3. DEFINITION AND SCOPE OF APPLICATION:

Generally, civil Law and Common law are the two most applied legal systems in the world. Based on their origins, traditions, and their key features.

3.1 Civil Law:

Civil law is a body of laws and legal concepts that come down from old Roman laws established by Emperor Justinian and differ from English Common law, which is the framework of most state legal systems. In the United States, only Louisiana (relying on the French Napoleonic Code) has a legal structure…' - extract from Legal Dictionary.

By its historical ground, a noticeable feature of Civil Law is that it's codified, which means:

• There is a comprehensive system consists of rules and principles, while these rules are alternative continuously to be completely adequated before coming into use in courts.

• Civil Law disparted different codes, each related to the concrete field of law:

(1) Substantive Law: Prescribing the specific situations whether it falls within the scope of subjecting to criminal or civil prosecution

(2) Procedural Law: Establishing limits on the consideration and imputation of an act as an offense

(3) Penal Law: Includes provisions on corresponding penalties for offenses

• Different court systems for different codes:

(1) Constitutional court systems

(2) Administrative court systems

(3) Civil court systems

The birth of civil law was to apply in the colonies of immemorial European powers such as Spain, Portugal. Besides, such regulated countries who possessed peculiar legal customs also approved civil law as a procedure to improvise and reform their legal systems, gaining success in the economic index as well as political power, reach to European nations powers, especially in the nineteenth and twentieth centuries. Nowadays, civil law is followed by those who were once colonies and protectorates of French, Dutch, German, Spanish, or Portuguese, which centralized in Central and South America. Likewise, the Central and Eastern European and East Asian countries interpreted and enforced law based on the civil law system.

In court, judges have intensity in bringing formal charges or making the last decision of the trial. Still, their determination and official assertion must be in the framework of codified codes and available legal compilations. Thus, judges' decisions have less contribution in law fixative. At least, their role in shaping law is not as major as Congress or legal scholars and legislators.

3.2 Common Law:

According to Legal Dictionary, 'common law' could be defined as 'the traditional unwritten law of England, based on custom and usage, which began to develop over a thousand years before the founding of the United States. … The common law became the basic law of most states due to the Commentaries on the Laws of England, completed by Sir William Blackstone in 1769, which became every American lawyer's bible. Today almost all common law has been enacted into statutes with modern variations by all the states except Louisiana, which the Napoleonic Code still influences. In some states, the principles of Common Law are so basic they are applied without reference to statute.'

In contrast to civil law, common law is uncodified, which means:

(1) There are no fixed or intensive legislation or regulations in the legal documents

(2) Common law is primarily based on case precedents, viz, rules are flexible by referencing previous similar case verdicts. Case law or case precedents often be recorded by courts or tribunals in the deciding courses.

(3) Not just words of witnesses, lawyers, or prosecutors acceptable at court. Common law lets the court sessions run as a polyphonic and adversarial system. The jury consists of ordinary citizens who have the right to monitor and provide influential opinions on the case decisions. The last sentence is also based on the unified verdict of the jury

While Civil-Law applied within European imperial powers colonies, Common-Law was born to enforce British colonies and prosecutors. The United States is also on the list of common law countries. Some typical countries now follow common law, such as The United States, England, India, Canada, etc.

Rely on the key features, one thing that is clear for approval is judges simultaneously play a greater role in shaping law and be bounded in any other verdicts. No legal documents would be comprehensive and codified, but judges' sentences in any precedents could greatly impact any later similar case.

(*) Note: Scroll to the gallery to see reference picture (Source: Wikimedia Commons)

4. DIFFERENCES COMPARATIVE TABLES:

The table below will summarize some main points taken above and from references led to distinguish the two common law and civil law (please scroll to the gallery)

5. WRAP UP

In brief, despite the path differs in terms of process. Still, both common law and civil law aim for the same goal in the end. We hope that this article will give you a massive and selective overview of the two legal systems: common law and civil law.

Credit: Ivy Hoang

(*) References sources:

(1) The Common Law and Civil Law Traditions - The Robbins Collection

(2) Key Features of Common Law or Civil Law Systems

(3) Legal Dictionary

(4) Common Law and Continental Law: Two Legal Systems

(5) MAIN DIFFERENCES BETWEEN THE COMMON LAW, STATUTORY LAW AND CIVIL LAW.

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