What is the Difference Between Common Law and Civil Law? - Blog | @WashULaw
PDF | The aim of this paper was not to judge which legal system is better: civil law or common law. The task of lawyers should not be to defend. Learn the differences between common law and civil law, such as the role of a lawyer, and which countries are common law and which. Today the difference between common and civil legal traditions lies in the main source of law. Although common-law systems make extensive.
As in common law systems, however, their tasks commonly include advising clients on points of law and preparing legal pleadings for filing with the court. But the importance of oral argument, in-court presentations and active lawyering in court are diminished when compared to a common law system. In addition, non-litigation legal tasks, such as will preparation and contract drafting, may be left to quasi-legal professionals who serve businesses and private individuals, and who may not have a post-university legal education or be licensed to practice before courts.
In contrast, in a common law country, lawyers make presentations to the judge and sometimes the jury and examine witnesses themselves. In these cases, lawyers stand before the court and attempt to persuade others on points of law and fact, and maintain a very active role in legal proceedings. And unlike certain civil law jurisdictions, in common law countries such as the United States, it is prohibited for anyone other than a fully licensed lawyer to prepare legal documents of any kind for another person or entity.
This is the province of lawyers alone. As these descriptions show, lawyers almost always have a significant role to play in formal dispute resolution, no matter in which country they practice.
But the specific tasks assigned to them tend to vary quite a bit. And outside the courtroom, tasks typically performed by lawyers in one country may be performed by skilled laypeople in another. Each country has its own traditions and policies, so for those who wish to know more about the role of legal practitioners in a particular nation it is important to do additional research.
To provide readers with a jumping-off point, here are a few examples of countries that primarily practice common law or civil law. Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. A jury of ordinary people without legal training decides on the facts of the case. Civil Law, in contrast, is codified.
Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense.
What is the Difference Between Common Law and Civil Law?
Such codes distinguish between different categories of law: Though the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws.
The following sections explore the historical roots of these differences. Basilica of San Vitale, Ravenna, Italy. The term civil law derives from the Latin ius civile, the law applicable to all Roman cives or citizens. Its origins and model are to be found in the monumental compilation of Roman law commissioned by the Emperor Justinian in the sixth century CE. While this compilation was lost to the West within decades of its creation, it was rediscovered and made the basis for legal instruction in eleventh-century Italy and in the sixteenth century came to be known as Corpus iuris civilis.
Succeeding generations of legal scholars throughout Europe adapted the principles of ancient Roman law in the Corpus iuris civilis to contemporary needs. Medieval scholars of Catholic church law, or canon law, were also influenced by Roman law scholarship as they compiled existing religious legal sources into their own comprehensive system of law and governance for the Church, an institution central to medieval culture, politics, and higher learning.
By the late Middle Ages, these two laws, civil and canon, were taught at most universities and formed the basis of a shared body of legal thought common to most of Europe. The birth and evolution of the medieval civil law tradition based on Roman law was thus integral to European legal development.
The Common Law and Civil Law Traditions
It offered a store of legal principles and rules invested with the authority of ancient Rome and centuries of distinguished jurists, and it held out the possibility of a comprehensive legal code providing substantive and procedural law for all situations.
As civil law came into practice throughout Europe, the role of local custom as a source of law became increasingly important—particularly as growing European states sought to unify and organize their individual legal systems. Throughout the early modern period, this desire generated scholarly attempts to systematize scattered, disparate legal provisions and local customary laws and bring them into harmony with rational principles of civil law and natural law.
Historical development of English Common Law Originally issued in the yearthe Magna Carta was first confirmed into law in This exemplar, some clauses of which are still statutes in England today, was issued by Edward I.
National Archives, Washington, DC. English common law emerged from the changing and centralizing powers of the king during the Middle Ages.
After the Norman Conquest inmedieval kings began to consolidate power and establish new institutions of royal authority and justice. New forms of legal action established by the crown functioned through a system of writs, or royal orders, each of which provided a specific remedy for a specific wrong.
The system of writs became so highly formalized that the laws the courts could apply based on this system often were too rigid to adequately achieve justice. In these cases, a further appeal to justice would have to be made directly to the king. Courts of equity were authorized to apply principles of equity based on many sources such as Roman law and natural law rather than to apply only the common law, to achieve a just outcome.
Courts of law and courts of equity thus functioned separately until the writs system was abolished in the mid-nineteenth century. Even today, however, some U. Likewise, certain kinds of writs, such as warrants and subpoenas, still exist in the modern practice of common law.