Comparative Law
1. Introduction:
In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This can often cause confusion to both lawyers and their clients. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc.
This paper will not deal with theoretical examination of differences between the common law and the civil law, but will focus rather on various distinctive features of civil law and common law, with several illustrations of resulting differences in both substantive law and procedural law. There are a great number of these differences and all of them, of course, cannot be dealt with in a short study of limited scope as this one. Even the books on comparative law which have extensively examined the differences between the civil law and the common law could not cover all those differences. Any attempt to make a selection of differences between the civil law and the common law on the basis of their importance would be difficult.
Legal system means includes a system of Co-ordination amongst the law making bodies, law applying institution and law enforcing intuition and such system subsists within the territorial extent of a state. There is a deep relation between law and legal system. Law is not isolated from legal system. The concept of law presumes legal system because without the existence of a legal system a law cannot be applied or enforced .
As defined by HLA Hart in his article “Positivism and separation of Law and Morals in the Harvard Law Review: “Legal system is a ‘closed logical system’ in which correct legal decisions can be deduced by logical means from predetermined legal rules without reference to social aims, political, moral standards…”[1]
Moreover a legal system is more than the sum total or legal material it represents the pattern or interrelation of this material and differs from them also in its overall purposes and functionary. Hence, legal system is very wide conception and it is a difficult task to sellout the purposes of a legal system. The purposes of legal system are under with laying with in purposes of law the purposes are mainly –
Ø The most important task is to achieve justice in society and justice is integral to concept of legal system.
Ø To provide a framework with which people conduct their affairs. This type of framework is essential for the regulation of our day to day life i.e. buying selling etc.
Ø To provide education for shaping people ideas in our country this function is conducted by the Bar councils universities , college and legal providing institution.
2. Legal Families of the World:
On the basis of the above mentioned criterion it is convenient to classify the legal system of the whole world into six major Legal Family:
1. Romano-Germanic (Civil Law) Legal Family.
2. Common Law Family.
3. Socialist Law Family.
4. Religious Law Family.
5. Law Family of Asia.
6. Law Family of Africa.
3. Common law:
Common law is law developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law,[2] on the principle that it is unfair to treat similar facts differently on different occasions.[3] The body of precedent is called "common law" and it binds future decisions.
The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent.[4] Thereafter, the new decision becomes precedent, and will bind future courts.
In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.
3.1 Primary connotations:
The term common law has three main connotations and several historical meanings worth mentioning:
a. Common law as opposed to statutory law and regulatory law:
This connotation distinguishes the authority that promulgated a law. For example, most areas of law in most Anglo-American jurisdictions include "statutory law" enacted by a legislature, "regulatory law" promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, and common law or "case law", i.e., decisions issued by courts (or quasi-judicial tribunals within agencies). This first connotation can be further differentiated into (a) pure common law arising from the traditional and inherent authority of courts to define what the law is, even in absence of an underlying statute, e.g., most criminal law and procedural law before the 20th century, and even today, most of contract law and the law of torts, and (b) court decisions that decide the fine boundaries and distinctions in law promulgated by other bodies, such as judicial interpretations of the Constitution, of statutes, and of regulations.
b. Common law legal systems as opposed to civil law legal systems:
This connotation differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions.[9] Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes. By contrast, in civil law jurisdictions (the legal tradition that prevails in, or is combined with common law in, Europe and most non-Islamic, non-common law countries), judicial precedent is given less weight (which means that a judge deciding a given case has more freedom to interpret the text of a statute independently, and less predictably), and scholarly literature is given more. For example, the Napoleonic code expressly forbade French judges from pronouncing general principles of law.
c. Law as opposed to equity:
This connotation differentiates "common law" (or just "law") from "equity". Before 1873, England had two parallel court systems: courts of "law" that could only award money damages and recognized only the legal owner of property, and courts of "equity" (courts of chancery) that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property. This split propagated to many of the colonies, including the United States (see "Reception Statutes," below). For most purposes, most jurisdictions, including the U.S. federal system and most states, have merged the two courts.[5] Additionally, even before the separate courts were merged together, most courts were permitted to apply both law and equity, though under potentially different procedural law.
3.2 History of the common law:
Common law originally developed under the auspices of the adversarial system in historical England from judicial decisions that were based in tradition, custom, and precedent. Such forms of legal institutions and culture bear resemblance to those which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, asapplied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts.
The type of procedure practised in common law courts is known as the adversarial system; this is also a development of the common law. Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other "test" of veracity (trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.
In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalised common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.
Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with Thomas Becket, the Archbishop of Canterbury.
Things were resolved eventually, at least for a time, in Henry's favour when a group of his henchmen murdered Becket. For its part, the Church soon canonised Becket as a saint.Thus, in English legal history, judicially-developed "common law" became the uniform authority throughout the realm several centuries before Parliament acquired the power to make laws.
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens.
In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict. In the United States, parallel systems of law (providing money damages) and equity (fashioning a remedy to fit the situation) survived well into the 20th century in most jurisdictions. The United States federal courts separated law and equity until they were combined by the Federal Rules of Civil Procedure in 1937 - the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, which of course led to all kinds of problems when a given case required both money damages and injunctive relief. Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court.
3.3 Basic principles of common law:
Statutes which reflect English common law are understood always to be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. Codification is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practiced in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date.
By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the damages or compensation available are limited to those outlined in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly -- that is, limited to their precise terms -- because the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism).
Where a tort is rooted in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement, and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.
3.4 Common law legal systems in the present day:
The common law constitutes the basis of the legal systems of: England and Wales, Northern Ireland, Ireland, federal law in the United States and the law of individual U.S. states (except Louisiana), federal law throughout Canada and the law of the individual provinces and territories (except Quebec), Australia (both federal and individual states), New Zealand, South Africa, India, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries (except Scotland, which is bijuridicial, and Malta). Essentially, every country that was colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as Quebec (which is follows the law of France in part), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law, except in the state of Goa which retains the Portuguese civil code.
Civil Law Legal System
4. Civil law:
Civil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not (as in common law) determined by judges.[6] Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices,[7] as well as doctrinal strains such as natural law, codification, and legislative positivism. Materially, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules.[8] It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially-trained judicial officers with a limited ability to interpret law.
4.1 Historical Development:
The civil law tradition traces its origin to the Roman Republic, a city- state that emerged in the 6th century BC and became an important commercial and military power. The early custom and laws of Rome were put in writing for the first time in 451 and 450 BC, when they were inscribed on 12 bronze tablets the principles contained within these twelve tables constituted the basis for all Roman civil law.
In the 4th century BC the leaders of the Roman Republic created a magistrate’s office, known as the praetorship, to hear cases involving civil (as opposed to criminal) matters. The sources of law applied by the praetors included the twelve tables, resolutions of the Roman senate, edicts (proclamations) of the praetors, and after August (Octavian) declared himself emperor in the 1st century BC, pronouncements of the emperor.
In the 6th century Emperor Justinian reunified the Roman Empire, which and been divided into eastern and western parts as a result of invasions during the 5th century. Justinian sought of restore the legal system throughout the empire and appointed a commission to collect and consolidate existing sources of Roman law. In 533 and 534 this commission published three books that were collectively known as the Corpur juris civilis (body of civil law), or the Justinian code. The Corpus Juris civilis empbdled many generations of legal pronouncements as well as interpretations by great jurists (legal scholars).
In compiling the Corpus Juris Civilis, Justinian sought to rescue the Roman legal system from years of deterioration and to restore it to its former glory. The vast quantity of materials written on the civil law convinced him that the code should eliminate error, resolve conflicts, and retain what was of value in systematic way. In particular, Justinian was concerned about the large number of legal treatises written by jurists, and he sought to abolish the authority of all treatises except those by the most distinguished jurists. He also sought to make it unnecessary for more law to be written and to abolish all prior law that was not included in the Justinian code.
Much of the western part of the Roman Empire was reconquered by various invaders in the last half of the 6th century. In the resulting chaos, the influence of the Corpus Juris Civilis in those areas diminished. the new rulers did not completely adopt Roman law or impose their own system. Instead, over the next several hundred years a partial fusion of local law and the law of the invader occurred. For example, simple versions of Roman civil law heavily influenced by Germanic legal customs were brought by invaders of what is now Italy.
Toward the end of the 11th century, when wars subsided in Europe and trade flourished, scholarly interest in law resurfaced, especially in Italy. The legal scholars who attempted to revive Roman law sought to establish the study of law as a science by interpreting and analyzing the Corpus Juris Civilis. There method was known as the gloss, and the practitioners of this method became known as the Glossators. Beginning in the 13th century, a group known as the Commentators attempted to integrate the Glossators’ interpretations of the Corpus Juris Civilis with customary law and canon, or religious, law. The commentators, focused on the development of a comprehensive legal theory. At this same time, the Corpus Juris Civilis began to be more commonly enforced as legal authority in France and Italy. The revival of the Roma civil law tradition eventually formed the basis for a common legal language throughout Europe.
The rise of nationalism that began in the 18th century led to the adoption of distinct civil codes for each Europeans country, of which the French code Napoleon of 1804 is the most famous. In the early 1900s Switzerland and Germany adopted similar codes. The subject matter of all these codes in almost identical with the first three books of the Corpurs Juris Civilis.
4.2 Codification:
An important characteristic, beyond Roman law foundations, is the extended codification of the adopted Roman law, i.e. its inclusion into civil codes. The system of codification has its origins in the Code of Hammurabi, written in ancient Babylon during the 18th century BC.
The concept of codification was further developed during the 17th and 18th centuries AD, as an expression of both Natural Law and the ideas of the Enlightenment. The political ideal of that era was expressed by the concepts of democracy, protection of property and the rule of law. That ideal required the creation of certainty of law, through the recording of law and through its uniformity. So, the aforementioned mix of Roman law and customary and local law ceased to exist, and the road opened for law codification, which could contribute to the aims of the above mentioned political ideal.
Another reason that contributed to codification was that the notion of the nation state, which was born during the 19th century required the recording of the law that would be applicable to that state. Certainly, there was also reaction to the aim of law codification. The proponents of codification regarded it as conducive to certainty, unity and systematic recording of the law; whereas its opponents claimed that codification would result in the ossification of the law.
4.3 Principles of Civil Law Systems:
In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general principles of the code.
By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly.
Civil Law is derived from the Roman tradition and is applied in the majority of countries in the world with a variety of differences
Common Law derives from the English tradition and comes from before written laws were available.
Many civil law countries use an inquisitorial system. This is where the judge or magistrate is responsible for conducting investigations into the case and determining the facts. It is in contrast to the adversary system where the prosecution is largely responsible for determining facts.
4.4 Characteristics of Civil law:
The most obvious feature of a civil law system is the presence of a written code of law. The code is systematic and comprehensive compilation of legal rules and principles. Although the contents of codes may vary widely from country to country, all code is intended as a blueprint of social regulation that attempts to guide individuals through society from birth of death. The civil law tradition makes a share distinction between private and public law. Private law includes the rules governing civil and commercial relationships such as marriage, divorce, and contractual agreements. Public law consists of matters that concern the government: constitutional law, criminal law, and administrative law. l In many countries with civil law systems, two sets of courts exist those that hear public law cases and those that address matters of private law.
The role of judges in civil law jurisdictions differs considerably from that the judges in common law systems. When different facts or new considerations arise, common law judges are free to depart from precedent and establish new law. The civil law tradition views judges as government officials who perform essential but uncreative functions. Civil law judges administer the codes that are written by legal scholars and enacted by legislators. They may also consult legal treatises on the issue in question. The civil law system assumes that there is only one correct solution to a specific legal problem. Therefore, judges are not expected to a judicial discretion or to apply their own interpretation to a case.
Civil law systems do not have any process like the common law practice of discovery- the poetical search for information conducted by the parties involved in the case. The trial of a case under civil law also differs substantially from a common law trial in which both parties present arguments and whiteness in open court. In civil law systems the judge supervises the collection of evidence and usually examines witness in private. Cross-examination of witnesses by the opposing party’s attorney is rate. Instead, a civil law action consists of a series of meetings, hearings and letters through which testimony is taken, evidence is gathered, the judgment is gathered, and judgment is rendered. This eliminates the need for a trial and, therefore, for a jury.
Systems of common law and civil law also differ in how law is created and how it can be changed. Common law is derived from custom and precedents (binding judgments made by prior judicial decisions). In the common law system, the precedent itself is law. Therefore, the judges who decide which party will prevail in any given trial are also the creators of common law. Civil law, on the other hand, is made by legislators who strive to supplement and modernize the codes, usually with the advice of legal scholars. Civil law judges administer the law, but they do not create it.
4.5 Geographic Expansion:
Beginning in the 15th century, many European countries extensively colonized north and South America, Africa, and parts of Asia. Colonial expansion spread the civil law system as colonizers imposed their system of law on their colonies. After achieving independence, some former colonies retained the legal system established by the civil law system established by France. Other former colonies chose a modified civil law system. The state of Louisiana, unlike to other American states, has a civil law system for no- criminal matters. This system originated during the period when Louisiana was a colony of France and then Spain.
Some former colonies base their new legal systems not on the specific civil law system of their colonizer, but on the civil law tradition in general. For example, Bolivia a former Spanish colony, adopted a system closely modeled of the on the French code. A few countries that were never colonized by countries with civil law systems, such as South Korea and Greece, have independently adopted the civil law model.
4.6 Trial System in Civil Law Countries:
In civil law system Inquisitorial system is followed in criminal trial. It is the responsibility of the judges to find out the truth by questioning the accused and the witnesses. Here the lawyer has very minor to play. But it cannot be said that civil law system strictly follows the inquisitorial system.
Since the interest of the privet individual is concern there in the judges made the procedure of decision between the parties concern there in and the lawyer can ask question from the accused and the witnesses through the presided judge. That why sometime it is said that the criminal trial of the civil law countries is quasi- inquisitorial.
Contrasts between common law and civil law systems
5. Adversarial system vs. inquisitorial system:
Common law courts tend to use an adversarial system, in which two sides present their cases to a neutral judge. In contrast, in civil law systems, inquisitorial system proceedings, where an examining magistrate serves two roles by developing the evidence and arguments for one and the other side during the investigation phase.
The examining magistrate then presents the dossier detailing his or her findings to the president of the bench that will adjudicate on the case where it has been decided that a trial shall be conducted. Therefore the president of the bench's view of the case is not neutral and may be biased while conducting the trial after the reading of the dossier. Unlike the common law proceedings, the president of the bench in the inquisitorial system is not merely an umpire and is entitled to directly interview the witnesses or express comments during the trial, as long as he or she does not express his or her view on the guilt of the accused.
The proceeding in the inquisitorial system is essentially by writing. Most of the witnesses would have given evidence in the investigation phase and such evidence will be contained in the dossier under the form of police reports. In the same way, the accused would have already put his or her case at the investigation phase but he or she will be free to change his evidence at trial. Whether the accused pleads guilty or not, a trial will be conducted. Unlike the adversarial system, the conviction and sentence to serve (if any) will be released by the trial jury together with the president of the trial bench, following their common deliberation.
There are many exceptions in both directions. For example, most proceedings before U.S. federal and state agencies are inquisitorial in nature, at least the initial stages (e.g., a patent examiner, a social security hearing officer, etc.) even though the law to be applied is developed through common law processes.
5.1 Civil Law and Common Law Compared:
A. Notion of Civil Law:
Civil law has its origin in Roman law, as codified in the Corpus Iuris Civilis of Justinian. Under this influence, in the ensuing period the civil law has been developed in Continental Europe and in many other parts of the world. The main feature of civil law is that it is contained in civil codes, which are described as a "systematic, authoritative, and guiding statute of broad coverage, breathing the spirit of reform and marking a new start in the legal life of an entire nation." Most civil codes were adopted in the nineteenth and twentieth centuries: French Code Civil, 1804, Austrian Burgerliches Gesetzbuch, 1811, German Burgerliches Gesetzbuch, 1896, Japanese Minpo, 1896, Swiss Zivilgesetzbuch, 1907, Italian Codice Civile, 1942. Between these codes there are some important differences, and they are often grouped in the Romanic and the Germanic families. Even though the civil codes of different countries are not homogenous, there are certain features of all civil codes which bind them together and "sets them apart from those who practice under different systems".
Civil law is largely classified and structured and contains a great number of general rules and principles, often lacking details. One of the basic characteristics of the civil law is that the courts main task is to apply and interpret the law contained in a code, or a statute to case facts. The assumption is that the code regulates all cases that could occur in practice, and when certain cases are not regulated by the code, the courts should apply some of the general principles used to fill the gaps.
B Notion of Common Law:
Common law evolved in England since around the 11th century and was later adopted in the USA, Canada, Australia, New Zealand and other countries of the British Commonwealth. The most obvious distinction between civil law and common law systems is a that civil law system is a codified system, whereas the common law is not created by means of legislation but is based mainly on case law. The principle is that earlier judicial decisions, usually of the higher courts, made in a similar case, should be followed in the subsequent cases, i.e. that precedents should be respected. This principle is known as stare decisis and has never been legislated but is regarded as binding by the courts, which can even decide to modify it.
The claim that common law is created by the case law is only partly true, as the common law is based in large part on statutes, which the judges are supposed to apply and interpret in much the same way as the judges in civil law (eg the Sale of Goods Act 1979, the Uniform Commercial Code).
5.2 Contrasting role of treatises and academic writings in common law and civil law systems:
The role of the legal academy presents a significant "cultural" difference between common law (connotation 2) and civil law jurisdictions.
In common law jurisdictions, legal treatises compile common law decisions, and state overarching principles that (in the author's opinion) explain the results of the cases. However, in common law jurisdictions, treatises are not the law, and lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases. In common law jurisdictions, scholarly work is seldom cited as authority for what the law is.[9] When common law courts rely on scholarly work, it is almost always only for factual findings, policy justification, or the history and evolution of the law, but the court's legal conclusion is reached through analysis of relevant statutes and common law, seldom scholarly commentary.
In contrast, in civil law jurisdictions, the writings of law professors are given significant weight by courts. In part, this is because civil law decisions traditionally were very brief, sometimes no more than a paragraph stating who wins and who loses. The rationale has to come from somewhere else, and the academy often filled that role. As civil law court decisions move in the direction of common law reasoning, it is possible that this balance may shift.
5.3 A Comparative Study between Civil Law System and Common Law System:
There is a marked difference of prickles between the common law tradition on the one hand and the civil law tradition on the other. The notable differences between these two systems may be summarized as follows:
1. The civil law tradition traces its origin to the Roman Republic, a city-state that emerged in the 6th century BC and became a center of important commercial and military power. The early customs and laws of Rome were put in writing for the first time in 451 “Basis” and 450 BC, when they were inscribed on 12 bronze or fables. Although many other factors like the ‘Justinian “Origin” Code’ are responsible for codification of Roman law, the principles contained within these ‘ twelve tables’ are considered to have constituted the basis of the civil law system.
On the other hand, common law is essentially the law of England and of those countries which base their legal system on the principles, rules and doctrines of England formulated, developed and administered by the common law courts.
2. The most obvious feature of civil law system is the presence of written codes of law. Codification of legal rules and principles.
On the other hand, the most obvious feature of common law system is not codification but its “Main feature” origin is common law meaning that part of the law “Codification” of England which was formulated, developed and administered by the old common law courts-the king’s Bench, the court of common pleas and the exchequer.
Common law was based on the common custom of the county and originally unwritten. Common law is understood as opposed to statute law, which is the law enacted by parliament or framed by public bodies under the authority of Parliament.
3. The common law was formed primarily, by judge who had to resolve specific disputed. The common law legal rule is one which seeks to provide the solution to a specific rather than to formulate a general rule of conduct for the future. The main characteristic of civil law system, on the other hand being codification, it aims at formulating general rules of conduct for the future.
4. The importance of case-law as a source of law is very great. It is a fundamental principle of common law system of attaché’s great weight to the doctrine of judicial decisions as a separate source of law. The great body of the common law of England is almost exclusively attributable to decided case.
On the other hand, in civil law countries, doctrine of precedent has not been formally established. There as judicial decision per se cannot claim any legal authority, though it may assist a judge in arriving at his conclusion. However, decisions of judges, of late, have been gaining some importance in some civil low countries like France, Italy and Germany etc.
5. In civil law countries, there is a sharp distraction between public and private law. in man civil law countries, the separation of public law and private law how led to the establishment of two sets of courts- those that hear public law cases and those that deal with questions of private law. But there is no such distraction of public and private law in common law countries. 6. The common law system follows adversary system of justice. Here the judge plays a non- partisan role. Courts have no significant role on the preparation of the cases.
On the other hand, the civil law countries follow inquisitorial system of justice. In this system the judges has central investigating responsibilities. The judges play the leading roles in the questioning at trial and have the main responsibility for reaching accurate, reliable results at the end of the enquiry. In civil law system the judges supervise the collection of evidence and usually examine witnesses in private. Cross-examination by the opposing party’s attorney is rare.
7. In common law countries, at the lower level there is a separation of functions of civil and criminal courts, though at the appellate stage this distinction disappear In civil law counties, on the other hand, there is a unity of civil and criminal justice and both civil and criminal cases are handled by same counts, even at the lower level.
8. In common law countries there is no body superimposed of disciplinary control of judges the provisions for removal of judges are enshrined in the constitution. But in civil law countries there is superimposed body for that purposes. For example, in France the High council of the Judiciary acts s disciplinary council for judges.
9. In common law system, the legal profession has an independent outlook influence by the autonomous training, while in the civil law countries, the legal training is state-directed.
10. Common law expanded in many of the member countries through colonization and in some countries through voluntary reception. The common law system is generally found in English speaking countries or in those places where the Englishmen rules for a considerable period of time. England, USA, Australia, Canada, New Zealand, South Africa, India, Bangladesh, Srilanka, Malaysia, Brunei, Myanmar, Pakistan, Singapore, Hong Kong, Philippines, Ireland etc. can be listed as common law counties.
On the other hand, most of the countries of Europe belong to civil law system. France, Germany, Italy, Spain etc may be listed as civil law countries. Besides, some countries like Japan, Turkey and the countries of South and Central America have voluntarily received this system.
5.4 Rapprochement of Common Law and Civil Law:
During the period of national codification many divergent legal systems were established, which proved to be an obstacle to the world economic integration. Since the end of 19th and the beginning of 20th century started the process of unification and harmonization of law, especially in the fields of international private and public law. The growing globalisation of the world economy, based on closer integration and cooperation among states, imposed a need for legal certainty and unification of law, so that an eventual dispute could be solved in the same way regardless of what court decides it and what law applies to it. This process involved reducing differences between various legal systems and an approaching between common law and civil law legal systems. As an illustration of this rapprochement, English law has introduced contracts for benefit of third parties by adopting the Contracts (Rights of Third Parties) Act 1999, while the Japanese Code Civil Procedural provides for possibility of direct examination and cross-examination of witnesses.
The binding force of precedents, as one of the main distinctive features of common law, is not so unique to the common law as it may seem, because of the actual influence the case law has on the courts in all legal systems. In some civil law countries the decisions of supreme courts have been made binding by statute. Even in the countries where the decisions of higher courts are not formally binding, they are likely to be followed by lower courts. On the other hand, the rigidity of the stare decisis doctrine has been softened by a number of changes in the common law countries, including the famous Practice Statement by the House of Lords, which declared that it considered itself no longer formally bound by its own precedents. Whether courts are bound or not by precedents, judges in all legal systems are aware that the need of reasonable certainty and predictability requires that like cases be treated alike. Hence, in contemporary civil law the role of judges in the creation of law is increasingly important, while the difference between civil law and common law courts shows a tendency of disappearing, or at least looking less significant. The presence or absence of a formal doctrine of stare decisis does not have crucial importance and it may be expected that differences between the common law and civil law systems in this area will diminish over time.
On the other hand, large sections of common law have been regulated by statutes and even codes (eg the UCC). This proliferation of statute law in the common law system has narrowed the court's power of interpretation. Modern common law courts also tend to give greater weight to the problem of individualised justice in the particular case instead of trying to provide guidance for the future. This tendency makes the role of common law courts similar to that played by the civil law courts.
An important step towards bringing together the civil law and the common law has been made through adopting international treaties, conventions and uniform rules containing elements of both the civil law and the common law. Such an example is the 1980 Vienna Sales Convention, which was adopted by both the civil law and the common law countries. The UNIDROIT Principles for International Commercial Contracts represent another attempt at bridging differences between the civil law and the common law. Differently from the Vienna Convention, the UNIDROIT Principles are not intended to become binding law, but they are aimed to serve as a model to national legislators and to provide guidance to courts and arbitrators when interpreting existing uniform law and deciding disputes relating to international commercial contracts. As result of the attempts to reconcile differences between the civil law and the common law, the Vienna Convention and UNIDROIT Principles contain some identical provisions. The 2000 INCOTERMS provides an additional set of rules which uniformly regulates the transfer of risk and costs in contracts of sale, thus avoiding inconveniences which may arise from differences between the civil law and the common law. There are similar examples in other fields of law, like international carriage of goods, international payments, international commercial arbitration.
Conclusion :
However, it is to be note that the opposition between civil law system and common law system has become increasingly blurred, with the growing importance of jurisprudence in civil law countries and the growing importance of statute law and order in common law countries.
MOHAMMAD RAYHAN UDDIN,
LL.B. (HONOURS), LL.M, MBA
MOBILE NO: +8801914676110
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[1] Harvard Law Review 593, P-602
[2] Washington Probate, "Estate Planning & Probate Glossary"
[3] Charles Arnold-Baker, The Companion to British History
[4] Marbury v. Madison, 5 U.S. 137 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.")
[6] Legal Terms", Armstrong Lawyers, retrieved on 11 June 2009
[7] Charles Arnold Baker, The Companion to British History, s.v. "Civilian" (London: Routledge, 2001)
[8] Michel Fromont, Grands systèmes de droit étrangers, 4th edn. (Paris: Dalloz, 2001)
[9] At least in the U.S., practicing lawyers tend to use "law professor" or "law review article" as a pejorative to describe a person or work that is insufficiently grounded in reality or practicality - every young lawyer is admonished repeatedly by senior lawyers not to write "law review articles," but instead to focus on the facts of the case and the practical effects of a given outcome.
