It is a fact that laws vary from one country to another, although it is not surprising to see that most legal systems today usually observe common law and civil law. In this article, we’ll find out how different these terms are.
A common law legal system is based on case law, or previous case rulings, and not on enacted law, religious law, or equity law. Common law judges base their decisions on their predecessors’ rulings on actual controversies instead of relying on statutes in applying the law. Here, judges look to law reports and are bound to adhere to precedents, or previously decided cases where the facts and circumstances are fundamentally similar. In other situations, judges are mandated to create law by setting a precedent. Once this happens, the new law becomes the precedent that future courts are bound to strictly uphold.
Although higher courts do not necessarily follow all of these decisions, they can still hold some persuasive authority in the proceedings. All citizens and even high-ranking government officials are subject to common law.
Civil law is also referred to as civilian law, or Roman law, and it is based on core principles or legal codes as the fundamental source of law. Thus, civil law is codified, in contrast to common law, which is based on previous court rulings. It also differentiates case law as being secondary while being subject to statutory regulations. These comprehensive legal codes are constantly updated so they can cover all matters that can be brought to court, including the legal procedure to be applied and the corresponding punishment for every offense.
In a civil law court, it is the judge’s role to build the facts surrounding the case and to apply the appropriate provision in the legal code. The judge must work within the framework of this legal code in relation to their role in bringing up the formal charges, investigating the matter, and ultimately deciding on the case. Thus, the role of a judge in crafting civil laws is less significant compared to the roles of legislators and legal scholars in charge of drafting and interpreting these codes.
Common Law vs Civil Law
The most critical difference between the common and civil law comes from the source of the law. In common law, facts are based on case laws, or legal precedents, while civil law is fundamentally based on coded laws, or enacted legislation.
The definition of common law is enough to tell you that judges in this legal system perform an important role in creating laws. While common law courts may refer to legislation, judicial cases take the front seat. In a civil law court, laws are created by legislation while case laws serve as guidelines. The judge’s role in a common law court is usually to act as a “referee” between two lawyers presenting arguments of their cases. In most cases, the judge or jury would listen to the arguments to arrive at a verdict for the case. In a civil law court, the judge takes on a more active role, collecting the facts surrounding the case by “investigating” the lawyers of both sides. The appropriate action is taken in accordance with coded laws.
|Common Law||Civil Law|
|Based on case law.||Based on coded or enacted law.|
|Judges can create laws.||Laws are created through legislation.|
|Judge or jury acts as mediators.||Judges build case facts to pass ruling.|
Here’s more on the difference between common and civil law.