A Comparison Between Common and Civil Law
Common law and civil law have developed over hundreds of years. These two differing legal systems underpin society in most countries around the world, with common law tracing its roots back to the Middle Ages in England. It has since been adopted in countries that were formerly part of the British Empire, as well as others such as the United States. Civil law, on the other hand, is grounded in the foundations of the Roman Empire.
Attorney-at-law Edgar Paltzer would advise that while most countries follow one of these legal systems, there are notable differences in their execution. Common law follows precedents set by judges in past cases, whereas civil law draws on legal scholars’ writings, and statutes and codes created by the legislature.
Significant Differences in Legal Approach
The legal system followed by each country determines the way court cases are conducted and their outcomes.
A common law system dictates that lawyers argue cases by questioning witnesses, presenting and analysing evidence, and building a case based on the available evidence. Civil law jurisdictions afford this investigatory role to the judge, who establishes the facts of the case and applies the relevant code.
In determining the outcome of a common law case, the judge listens and analyses the arguments put forward by both parties before making a final ruling.
There are some countries that use a combination of these two approaches. The South African legal system mixes elements of common and civil law, while Muslim countries back up a religious system with a civil law foundation. In cases with a cross-border element this can be problematic, requiring arbitration to reach a resolution.
The embedded PDF takes a closer look at the countries that have adopted a mixed legal system.
The Potential Pitfalls of Common Law
The key difference between each of these legal approaches is that common law systems practise a adversarial style of conflict resolution, while civil law is inquisitorial. The adoption of an adversarial approach can lead to hostility and more difficulty in reaching a resolution. While this style of law is suitable in many circumstances, there are some cases that could benefit from civil law practices. Taking an adversarial approach to the dissolution of a marriage is not beneficial to the resolution of conflict and protecting the interests of any children.
There is also an argument that common law has an impact on police behaviour, sometimes leading to the oppression of marginalized groups in society. Defendants can be charged several times rather than once or twice in an attempt to engineer a guilty plea, rather than using an objective approach to determine the potential hazard posed by the individual in question.
