And Civil Law
This paper is aimed analysing the differences between common law and civil law in the UK and other European countries. It will also explore the theory behind the development of these laws and the segments of society that they cater to.
The Common Law v/s Statute Law Conflict
Collin put forth a viewpoint that the increased collision between public law and contractual practices has led to a disintegration of the former, resulting in the need to revise the private so that it is in tandem with the public and welfare legislation1. However, private laws and public regulation are governed by doctrines that are very different in their basic nature and whom they are meant to protect. Courts do not have the access or the understanding required of these doctrines in order to formulate effective policies. Beatson further speaks in favour of the bringing together of statute and common law by posing the question: “Why should statutory manifestations of principle identified in this way not be part of the armoury of the common law judge in determining a hard case and seeking to determine what best fits the fundamental principles of the legal system2?”
For example, in the case of unfair dismissal, the common law empowers the employer to terminate a contract of employment, without defining any process or fair practice to be followed, until and unless these are mentioned particularly in the employment contract. The employment contract supersedes the law and is the only document considered by the court to determine the wrongfulness or unfairness of dismiss. As such, the employer has a free hand in the manner of dismissal and is, at most, liable to provide a fixed notice period, a term mentioned within the employment contract, fixed term contracts being the exception3. Statutary law, on the other hand, provides for better protection of an employee’s rights.
The attributes of Common Law indicate the incomplete move the system of causes of action to the system of substantive rights and the partial categorization of real rights and personal rights have arising as a result of a standalone court system4. It was the power of the court that converted common law into the first idea of law as a rule. Hence, law itself constitutes those rights have been protected by common law courts. This lends stability as well as flexibility to the common law system. However, this very nature makes the common law unsystematic as it is not thoroughly etched out.
Civil Law can be described as a structure of substantive rights that is different as a concept and is segregated into real and personal rights. At the law’s nucleus is the right to ownership or property and it is has been categorized into codes. The civil law system is believed to have originated in as a legal science during the Roman and Greek era, which has been passed on through periods till modern day5. As the civil law has been drafted, coded and has been viewed as a system of rights, its highly systemized and transparent in nature. However, unlike the common law, it lacks flexibility to adapt to changing societal demands as the civil law follows a lengthy and tedious process for amendment.
However, the conceptual differences between civil and common laws are often exaggerated. To begin with, both the concepts have descended from the Roman law system that has formed the very basis of English, Scottish and American legal systems6. The Common Law relies heavily on jurisprudence to develop legal theories that maintain a balance between stability and flexibility while attempting to attain systematic transparency at all times. In the case of the Civil Law, the traditional purpose of its development was to form a private law to protect private rights. It was focused on protecting people from those who abused governmental power. However, both forms of laws are mutually acceptable and used in society.
Countries around the globe place varied levels of importance to Common Law and Civil Law. In Europe, England, Ireland and Wales follow the Common Law as jurisdiction although it is more codified here than it is traditionally. Other countries that are Common Law jurisdictions include the United States of America, Canada, Australia, India, Malaysia, Jamaica and South Africa. The Common Law here is based on rules created by judges during prominent cases. Conversely, European countries such as Germany and France follow Civil Law jurisdiction, wherein the law as a code is given much more importance than judge-made rules 7.
The most striking difference between Common Law and Civil Law can be noted on how each draws decisions to serve justice. Common Law operates on a more ‘case to case’ basis, approaching each case separately. The principles governing the law are generally arrived at after learning for every individual case. A judge would rely on historical records of similar cases, analyzes current case fact and arrives at conclusions without following any set dogmatic conceptual construct. On the other hand, Civil Law relies mainly on a set of codes and abstract rules against which the particulars of a case are checked. It is on the basis of the relevance of the case to these rules, issues are predicted and solved in advanced through subsuming. A Common Law practitioner would need to first wait for a problem to appear and then devise a solution.
Doctrine takes precedence over jurisprudence in Civil Law. It acts like a framework or guideline that all practitioners including courts, judges and lawyers need to adhere to when deciding on current cases. They are also to use these doctrines to devise various legal treatises for future case scenarios. However, in Common Law, doctrines are only minimally used to identify likenesses and distinctions between cases as well as derive particular rules from historical cases.
Common Law and Civil Law have several procedural differences as well, especially on how cases are carried out. Common Law procedures are mainly adversarial in nature where the role of lawyers entails the presentation of case facts, the point of view of each party as well as the legal view. The judge, under Common Law, solely acts as a manager of the proceedings. He or she reviews the presentations made by the lawyers and makes this the basis of the decision being passed on the case. In cases that need the services of a jury, the judge only summarizes the evidences and helps the jury understand the legal tenets pertaining to the case. Hence, it can be said that, in the case of Common Law, the proceedings of a case rely mainly on the attorney or lawyer and less on the judge.
Considering the important role that lawyers play in the Common Law, the English legal system categorizes them under two headings: a) Barrister – an attorney who solely advise clients on the possibility of success of a provisional case and representing them in the court, and b) Solicitor – These lawyers act as single points of contact for not just litigation but also legal acts such as writing of wills, legalities of a marriage and transfer of titles. However, this categorization of lawyers does not exist in several common law countries while in others, such as Canada, the differentiation used to exist earlier but is not practiced today.
In the case of Civil Law, while other parties involved in a case are relevant to the proceedings too, it is the judge who plays the most important role. It is for this reason that, when compared to common law, civil law proceedings are more inquisitorial in nature. Civil court judges undertake the interrogation and questioning of witnesses for extracting evidence. The facts and evidences presented by the representing lawyer are cross examined and verified by the judge. Once the judge has drawn sufficient information, the lawyer can only ask additional questions.
Under the common law, the clients and their lawyers are to provide all evidences relevant to the case, including the testimonies of the prosecution’s as well as defence’s witnesses. Each lawyer is allowed to question his ‘own’ witnesses as well as cross examine the opponent’s witnesses as well. This practice, however, is not followed under the civil law. This is a major difference between common law and civil law procedures as only the judge has the right to question witnesses under the civil law. Hence, there is no scope for cross examination of witnesses. The role of expert witnesses also differ in both laws. Under the common law, the prosecution and defence are allowed to bring their own experts who are also open to cross questioning. However, in the case of civil law, it is the judge who appoints an expert, generally a sole expert, and takes his opinion on the case.
The purpose of proceedings also differ in common law and civil law. Under the common law, the parties in the case are given the opportunity to amass evidence and testimonies that support their point of view and present the same before the judge or a jury, based on which the verdict of the case is delivered. However, under the civil legal system, the focus of the proceedings is to find a resolution to a problem. Instead of parties presenting the facts, the judge assumes what must be the most accurate description of the facts and takes decisions on this basis. Hence, the decisions made in this manner are not always ‘right’ or based on actual facts but a only a perception of the facts.
Under the civil legal system, the parties involved a highly detailed version of their view point in writing which enlists all the facts and evidences to be presented in court as a first procedural step. After a certain degree of discussions within the view of the court, the case is finally tried, where the judge verifies the facts given in the writings of both the parties, analyses them and arrived at a conclusion. However, under common law, the parties are first allowed to collect all the evidence to support their claim. Further, the prosecution and defence are permitted to view each others’ evidences and prepare thoroughly for a trial. It is only then that the case is presented before the court, where a verbal trial takes place and a verdict is announced by the judge or the jury.
In conclusion, common law and civil law systems have several differences. To begin with, they differ in their very origin and progression. Both the systems are followed by various countries across the globe, although the common legal system prevails more in liberal democratic countries such as the UK, US and India. Further, the systems differ in their basic concepts and procedures as well. The common law places greater importance on the role of lawyers while in the civil law, the judge is pivotal.
Anderman, S. (2004). Termination of Employment: Whose property Rights? In C. Barnard, S. Deakin, & G. Morris, The Future of Labour Law: Liber Amicorum Bob Hepple QC. Oxford/ Portland Oregon: Hart Publishing.
References
Beatson, J. (2001). The Role of Statute in the Development of Common Law Doctrine. Law Quarterly Review 247 , 117.
Collins, H. (1999). Regulating Contracts. Oxford: Oxford Univesity Press.
Frank Wieacker, ‘The Importance of Roman Law for Western Civilization and Western legal Thought’ (1981) Boston College International & Comparative Law Review 257 at 258
Jon Rush and Michael Ottley, Business Law (Thomson, 2006) at 5
Peter Stein, The Character and Influence of the Roman Civil Law: Historical Essays(Hambleden Press, 1988) at 411
Ralf Rogowski, ‘Introduction’ in Ralf Rogowski (ed), Civil Law (Darthmouth Publishing Company, 1996) xi at xii
