Definition of Civil Law and Common Law
Civil Law and Common Law are two distinct legal systems that have developed in different parts of the world.
Civil Law, also known as continental law or Roman law, is a legal system that is based on a comprehensive written code. The laws and regulations are clearly defined, and they are interpreted by courts. Civil Law is used in countries that have a civil law tradition, such as France, Germany, and Italy.
Common Law, also known as case law or Anglo-American law, is a legal system that is based on judicial decisions and precedents. The laws and regulations are developed through court cases, and they are applied based on the principle of stare decisis (let the decision stand). Common Law is used in countries that have a common law tradition, such as the United States, Canada, and the United Kingdom.
Historical background of the development of Civil Law and Common Law
The historical background of the development of Civil Law and Common Law can be traced back to ancient Rome and medieval England, respectively.
Civil Law, also known as Roman Law, has its roots in ancient Rome. During the Roman Republic and Empire, a system of laws was developed that was based on the idea of a written code. This system was known as the Corpus Juris Civilis, and it covered a wide range of legal topics, such as property, contracts, and crimes. After the fall of the Roman Empire, the Corpus Juris Civilis was adopted and adapted by many European countries, and it became the basis of the Civil Law system.
Common Law, on the other hand, has its roots in medieval England. During this period, the legal system was based on custom and tradition, and laws were developed through the decisions of local courts. These decisions were then applied in similar cases, creating a system of precedents. As the English monarchy and legal system developed, the common law system was adopted in England’s colonies and territories, including the United States, Canada, and Australia.
Difference Between Civil Law and Common Law
Differences in Legal Systems:
Civil Law and Common Law have distinct differences in their legal systems.
Civil Law, also known as continental law or Roman law, is based on a comprehensive written code. The laws and regulations are clearly defined and interpreted by courts. Civil Law countries have a centralized system of law-making where the laws are made by the legislature and interpreted by the judiciary. In Civil Law countries, the legal system is based on a code of laws that cover all aspects of legal relations, and the courts apply the laws as they are written. This system is also known as the inquisitorial system, where the judge actively investigates the case and the burden of proof is on the prosecution.
Common Law, on the other hand, is based on judicial decisions and precedents. The laws and regulations are developed through court cases, and they are applied based on the principle of stare decisis (let the decision stand). Common Law countries have a decentralized system of law-making where the laws are made by the judiciary through judicial decisions. In Common Law countries, the legal system is based on a common law of principles that have been established through prior judicial decisions. This system is also known as the adversarial system, where the parties present their evidence and the judge acts as a neutral arbitrator, and the burden of proof is on the defense.
Differences in Legal Procedures:
The legal procedures in Civil Law and Common Law systems differ in several ways.
In Civil Law systems, which are used in countries such as France, Germany, and Italy, the legal procedure follows an inquisitorial system. This means that the judge actively investigates the case, and the burden of proof is on the prosecution. The judge plays an active role in the investigation and is responsible for gathering evidence, questioning witnesses, and determining the facts of the case. The judge also has the power to order the arrest of a suspect, and the defendant is considered guilty until proven innocent.
In contrast, in Common Law systems, which are used in countries such as the United States, the United Kingdom, and Canada, the legal procedure follows an adversarial system. This means that the parties present their evidence, and the judge acts as a neutral arbitrator. The burden of proof is on the defense, and the defendant is considered innocent until proven guilty. The parties are responsible for gathering and presenting evidence, and the judge’s role is to rule on the admissibility of evidence, and determine the facts of the case.
Differences in Remedies:
The remedies provided in Civil Law and Common Law systems differ in their focus and approach.
In Civil Law systems, the focus is on compensating the victim for any harm suffered. If a person is found liable for causing harm to another person, the remedy will typically be a financial award to the victim. This can include compensatory damages, which are intended to compensate the victim for their losses, and punitive damages, which are intended to penalize the liable party for their actions.
In Common Law systems, the focus is on punishing the offender and deterring future criminal activity. If a person is found guilty of a crime, the remedy will typically be a criminal sentence, such as imprisonment or fines. This is intended to punish the offender and deter others from committing similar crimes.
Differences in Jurisdiction:
Jurisdiction is the power of a court to hear and decide a case. Civil Law and Common Law systems have different approaches to determining jurisdiction.
In Civil Law systems, jurisdiction is typically determined by the location of the incident or the residence of the defendant. This means that if an incident occurred in a specific geographical location, the court in that location will have jurisdiction to hear the case. Alternatively, if the defendant lives in a specific location, the court in that location will have jurisdiction. This system is based on the idea of territorial jurisdiction.
In Common Law systems, jurisdiction is typically determined by the location of the incident or the nationality of the parties involved. This means that if an incident occurred in a specific location, the court in that location will have jurisdiction to hear the case. Alternatively, if one or more of the parties involved are citizens of a specific country, the court of that country will have jurisdiction. This system is based on the idea of personal jurisdiction.
Conclusion
Civil Law and Common Law are two distinct legal systems that have developed in different parts of the world. They have different origins, legal systems, procedures, remedies, and jurisdiction. Civil Law is based on a comprehensive written code, with laws and regulations being clearly defined and interpreted by courts, and it follows an inquisitorial system where the judge actively investigates the case, and the burden of proof is on the prosecution. Common Law is based on judicial decisions and precedents, with laws and regulations being developed through court cases, and it follows an adversarial system where the parties present their evidence and the judge acts as a neutral arbitrator, and the burden of proof is on the defense. Civil Law focuses on compensating the victim for any harm suffered, while Common Law focuses on punishing the offender and deterring future criminal activity. Civil Law jurisdiction is determined by the location of the incident or the residence of the defendant, whereas Common Law jurisdiction is determined by the location of the incident or the nationality of the parties involved. Both legal systems aim to provide justice and uphold the rule of law, but they have different approaches to achieving those goals.
