Differences between Common Law and Civil Law Tradition Origin Civil law originated in the late Roman Empire with the codification of Roman law by Justinian in the sixth century This greatly influenced.
Differences between Common Law and Civil Law Tradition • Origin Civil law originated in the late Roman Empire with the codification of Roman law by Justinian in the sixth century This greatly influenced jurists in continental Europe and civil law became the main source of law there from the Middle Ages, eventually evolving into the codified legal regimes encountered today Civil law was exported by Europe’s colonial powers, notably France, Portugal, and Spain, to most of Latin America, as well as to parts of Africa and Asia There are now about 150 civil-law jurisdictions Civil law, however, did not take hold in England, which developed a distinct legal tradition known as the common law This emerged following the Norman Conquest of 1066 to replace the less formal Anglo-Saxon legal regime Common law developed out of a need for courts to interpret writs and orders issued by the monarch which were not sufficiently wide enough in scope to cover a multitude of eventualities This practice continued when parliament replaced the monarch as the main source of legislation Common law traditions are found in all corners of the world by virtue of Britain’s expanding global influence from the 17th century The United States, Canada, Australia, New Zealand, Ireland and India are all examples of common law countries, as are other jurisdictions once British colonies or territories Common-law countries now number about 80 • Sources Civil law: Constitution Legislation – statutes and subsidiary legislation Custom International Law [Nota bene: It may be argued that judicial precedents and conventions also function within Continental systems, but they are not generally recogn Common law: Constitution (not in the UK) Legislation – Statutes and subsidiary legislation Judicial precedent – common law and equity Custom Convention International Law • Legal representation In both civil and common law countries, lawyers and judges play an important role In civil law countries, judges are often described as “investigators.” They generally take the lead in the proceedings by bringing charges, establishing facts through witness examination and applying remedies found in legal codes Lawyers still represent the interests of their clients in civil proceedings, but have a less central role 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 postuniversity 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 The proceedings are then “refereed” by the judge, who has somewhat greater flexibility than in a civil law system to fashion an appropriate remedy at the conclusion of the case 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 • Contract Freedom of contract is very extensive in common law countries, i.e., very little or no provisions are implied in contracts by law Civil law countries on the other hand have a more sophisticated model for contract with provisions based in the law In contrast to common law, the civil law system is a codified system of law that dates all the way back to the Roman legal system A civil law system is generally more prescriptive than a common law system There is definitely less freedom of contract than in a common law system Many provisions are implied into a contract by law and parties cannot contract out of certain provisions As a direct result, less importance is placed on setting out ALL the terms governing the relationship between the parties to a contract Rather than be defined in the contract itself, such inadequacies or ambiguities tend to be remedied or resolved by operation of law This will often result in a contract being shorter than one in a common law country • Evolution Both systems have similar sources of law- both have statutes and both have case law, they approach regulation and resolve issues in different ways, from different perspectives • Contries Civil law: Spain, China, Japan, Germany, most African nations, all South American nations (except Guyana), most of Europe Common law: United States, England, Australia, Canada, India ... in a civil law system to fashion an appropriate remedy at the conclusion of the case In these cases, lawyers stand before the court and attempt to persuade others on points of law and fact, and. .. provisions based in the law In contrast to common law, the civil law system is a codified system of law that dates all the way back to the Roman legal system A civil law system is generally more... of lawyers alone • Contract Freedom of contract is very extensive in common law countries, i.e., very little or no provisions are implied in contracts by law Civil law countries on the other hand