Civil Law versus Common Law (Legal Systems)

Civil or civilian law (as opposed to Common Law) is based on Roman law, especially the of Emperor , as later developed through the Middle Ages by medieval legal scholars. Modern systems are descendants of the 19th century codification movement, during which the most important codes came into existence. The was completed in 1811. Around this time civil law incorporated many ideas associated with the Enlightenment.

Today people use the term “Common Law” to denote the system of law that developed in England and was imported into countries influenced by the English. Civil law, on the other hand, is also sometimes known as “Continental European Law” although it is practiced around the world, such as in Latin America, Japan and most former colonies of continental European countriesbut also in Quebec (Canada) and Louisiana (USA).

In the civil law system the primary source of law is a , whereas Common Law rules are developed based on , (thereby also referred to as . The general principle of a case law system is that similar cases with similar facts should be solved by using the rules created in former similar (so called ) cases.

Still, the difference between civil law and Common Law lies less in the mere fact of than in the to codes and statutes. Since is seen as the primary source of law in civil law countries, courts base their judgments on statutes from which solutions in particular cases are derived. Therefore, courts reason extensively on the basis of general legal principles or draw analogies from statutory provisions to fill gaps. By contrast, in the system are the primary source of law, while statutes are interpreted narrowly. Consequently, judges have an enormous role in shaping the law.

It is often said that Common Law opinions are much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very short and formal in nature. But this is not the case in all civil law countries, since there are notable differences between the various used. In fact, in German-speaking countries court opinions are sometimes as long as American ones and often discuss prior cases and academic writing extensively. There are, however, certain : civil law are usually trained and promoted separately from attorneys, whereas Common Law judges are regularly selected from accomplished and reputable attorneys. Also, the influence of academic writing by on case law tends to be much greater in civil law countries. Civil and Common Law systems also differ considerably in courtroom procedure. While Common law functions as an adversarial system (contest

between two opposing parties before a ), the civil law judge plays a in determining the facts of the case. Also, civil law systems rely much more on written than on oral argument.

SIMPLY

Civil law is primarily contrasted against Common Law, which is the legal system in England, the US and other countries influenced by the English. The lie in the and the civil law is a law enacted by a nation or state for its own jurisdiction; it is a codified system of law setting out a comprehensive system of rules that are applied and interpreted by judges. In the Common Law system the primary sources of law are . These opinions contain legal principles that can be applied to solve future cases.

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Concepts

Vocabulary

Discuss

Concepts

branches of government

most governments (such as the US government) can be devided into three separate branches: legislative, executive and judicial branch, whereby each branch has its own responsibilities (making, executing and interpreting the law).

case law

in Common Law systems, higher court decisions are binding on lower courts in cases with similar facts and similar legal issues. This concept of (see below) means that lower courts are bound to appellate cases. The law based on judicial decision and precedent rather than on statutes (case law) is distinguished from “statutory law,” which is the statutes and codes (laws) enacted by legislative bodies.

civil law

body of laws and legal concepts derived from old Roman laws which differ from (Angloamerican) Common Law; generic term for non-criminal law.

code

systematic and comprehensive (written) compilation of laws, rules or regulations, which are classified according to subject matter. The process of collecting and restating the law is known as “codification”.

Common Law

the system of deciding cases referring to former (precedent) cases, which originated in England and was later adopted in the US. Today, many Common Law principles have been transformed into statutes with modern variations.

Court of Equity

originally, in English Common Law and in several states there were separate courts (some called “chancery courts”) which handled lawsuits and petitions dealing with various non-monetary claims. The judicial remedies (“equitable remedies”) developed by these courts provided flexible responses to changing social conditions allowing courts to use their discretion. Nowadays, most Courts of Equity have merged with courts of law.

judiciary

the judicial branch of government.

legal methodology

the system of methods followed in a particular ( legal) discipline; an organized set of procedures and guidelines (method, , approach). Sometimes, methodologies include a step-by-step “cookbook”-approach for carrying out the procedure.

legislative act

an act passed by a legislative body.

legislative enactment / legislation

lawmaking; the preparation and enactment of laws by a legislative body.

precedent

an appellate court decision which establishes a legal rule (authority) and is therefore cited as an example to resolve similar questions of law in later cases. The principle that a lower court must follow a precedent is called (see below).

provision (of law)

a statute often has various provisions (articles, clauses).

stare decisis [ster-?-di-s?-s?s]

Latin for “to stand by a decision”; it expresses the (Common Law) doctrine that lower courts are bound by higher court decisions (precedents) on a legal question which was raised by the lower court. A trial court judge must not ignore the precedent until the appellate court changes the rule.

statute

written law enacted by state legislature; local statutes or laws are usually called “ordinances.” Regulations, rulings, opinions, executive orders and proclamations are not statutes.

NOTE THE DIFFERENCE

1. justness, fairness

2. judge

1. judicial system

2. the bench (= all judges)

1. legal philosophy

2. decisions of the courts

legal authority/power

Vocabulary

article

Paragraph

binding precedent

bindender Präzedenzfall

codification

Kodifizierung

to enact a law, to pass a law

ein Gesetz erlassen, verordnen

equitable

billig, billigkeitsgerichtlich

to establish a precedent

einen Präzedenzfall schaffen

executive order

Durchführungsverordnung

to follow a precedent

einem Präzedenzfall folgen

judiciary

Justiz, Justizgewalt, Rechtssystem

jurisdiction

Zuständigkeit, Gerichtsbakreit, auch: Rechtsprechung

jurisprudence

Rechtswissenschaft, Jurisprudenz, Rechtslehre

ordinance

Anordnung, Verordnung

to overrule a precedent

einen Präzedenfall außer Kraft setzen, aufheben

precedent (case)

Präzedenzfall

provision

Klausel

remedy

Abhilfe, Mittel, Rechtsmittel

to resolve

lösen, beseitigen, aufklären

sources of...