LEGAL SYSTEMS 6
Comparisonbetween common law and civil law
Abstract Acrossthe world, legal systems vary in a big way, although they normallyfollow common law and civil law. Common law and civil law have someaspects that are common but the two also differ greatly. In commonlaw, when a jurist makes a decision on any case, the past legalrulings play a significant role. On the other hand, civil law entailsstatutes and ordinances that are codified are the basis of therulings made. As far as the two differ, they can be used as acombination in some countries such as South Africa. In this paper acomparison of the two is outlined basing on various legal aspects.
Legalsystem As mentioned above, legal systems vary greatlyacross the world. This also reflects in countries that employ civiland common law. Under civil law, the origin of the legal system is inEurope. The civil law relies of the core principles that arecodified. Whenever a decision has to be made on any case, theseprinciples play a big role as the main reference (Milhaupt &Pistor, 2008). On the other hand, previous cases characterize thelegal system under common law. Judges under this system play acritical role in developing the law by making decisions in courts aswell as similar tribunals.
Roleof judges In every legal system, judges have a role toplay. Most of the roles played by the judges depend on which systemis employed in the country in question. In civil law, judges aremandated with the role of establishing facts entailed in a case aswell as applying the provisions of the code that well fits the case.However, in civil law, the judge frequently brings the officialcharge. This slightly differs with the role of judges under commonlaw, where their main role is to make decisions on law matters. Thejudges under common law also find facts in cases where the jury isabsent. It is good to note that a majority of judges do not alwaysinquire extensively into matters brought to them rather they onlyrely on part of the arguments presented (Coelho, 2015).
Constitution Eachand every legal system has got guidelines which outline the laws andregulations of the system. However, in making decisions, theguidelines play a critical role although not in all systems. Forinstance, under civil law system, a constitution is very important asit is always used by the jurists in making decisions (Milhaupt &Pistor, 2008). This is not the case by the common law where theconstitution is not always used.
JuryOpinion Jurist’s opinion matters a lot in any legalsystem. The weight and the type of the opinion however mattersdepending on the system employed in the particular country. For civillaw system, the jurist’s opinion may not necessary be unanimous.Their opinion count mostly in cases involving crimes, and rarely arethey involved in civil cases. Under common law, laypersons are theonly ones that comprise juries, unlike in civil law where judges andlawyers are involved. The opinion of the Jury under common lawconcerns or entails weighing evidence that is presented before themand finding facts in a case (Coelho, 2015).
History Inbusiness law, history plays a big role in making a basis for thesystem. The establishment of common law systems as well as civil lawsystems has histories that are intertwined. When history ismentioned, the first thing to think of is the development or simplythe origin of the law. Traditions that are employed under civil lawwere developed in mainland Europe at the same time. During that time,the law was functional in colonies under European imperial powerssuch as Portugal and Spain (Carney, 2014). Although it is in Europe,common law was majorly developed in England and its former coloniesthat including Canadian and US jurisdiction. It is important to notethat most of the countries that speak English practice the commonlaw.
Sourcesof law Everything that happens in the world has somewhereit emanates. Same applies to business law. There are many sourcesthat create the basis of law in both common and civil law systems.Some sources are common between the two with just a slight differencesuch as the constitution. Both systems source legal facts from theconstitution however, in the UK where common law is applied, theconstitution is not regarded as a source of law (Coelho, 2015). Other sources that are common among the two systems includeinternational law, customs and legislation which are majorly statutesand subsidiary legislation. With a slight difference, common lawsources facts from judicial precedent which advocates for common lawand equity as well as convention. For civil law system, judicialprecedents and conventions only work within the mainland systems butin general, the two are not recognized under civil law (Carney,2014).
Conclusion Thispaper has outlined a comparison between the civil law and common law.Even though it is admitted that the two began from two extremes, itis sometimes argued that as a result of the movements made by each inthe direction of the other, there is no longer much differencebetween them. Each system has strong traits of a distinct andcomprehensive nature that establishes its own individuality.Countries that practice civil law include China, Germany, most ofAfrican nations, Spain among others. On the other hand, common law ispracticed in the US, Australia, England, India and Canada.
Carney,G. (2014). Comparative Approaches to Statutory Interpretation inCivil Law and Common Law Jurisdictions. StatuteLaw Review,36(1),46-58. http://dx.doi.org/10.1093/slr/hmu019
Coelho,F. (2015). Legal certainty and Commercial Law: a comparativeperspective (common law x civil law). IALSStudent Law Review,2(2).http://dx.doi.org/10.14296/islr.v2i2.2173
Milhaupt,C., & Pistor, K. (2008). Lawand capitalism.Chicago: University of Chicago Press.