The difference between Common Law and Civil Law

As lawyers are aware, legal systems in countries across the globe generally come under one of the main categories: Common Law and Civil Law. There are approximately 150 countries that follow the Civil Law system whilst about 80 countries follow the Common Law system.

The main difference between the two systems is that in Common Law countries, the jurisprudence - which takes the form of published judicial opinions - is of fundamental importance. In Civil Law, however, codified statues prevail. These divisions are, nevertheless, not as clear as they appear. As a matter of fact, many countries use a combination of characteristics from Common Law and Civil Law. To understand the differences between these two legal systems, we must first understand their historical foundations.

The origin of law

The original source of the Common Law legal system dates back to the British monarchy which used to produce formal orders known as "writs" when justice needed to be served. As the judicial resources weren't sufficient to take on all situations, equity tribunals were ultimately created to establish the allegations and devise the appropriate resources based on principles of equity which were drawn from many sources of authority (such as Roman Law and "Natural" Law). As these decisions were codified and published, the courts were able to search for previous opinions and apply them to current cases. This is how Common Law developed.

Civil Law, on the other hand, in other European nations generally dates back to the statutes book compiled by the Roman emperor Justinian around 600 D. C. The authoritative legal codes with ties to these laws (or others) developed over many centuries in various countries and gave rise to similar legal systems, each with its own combination of laws.

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The functions of Lawyers and Judges in each system

In countries following Civil Law, judges are regularly describes as "investigators". In general, they often lead proceeding by presenting the charges, establishing the facts by interrogating the witnesses and applying the resources within the legal statutes.

Lawyers continue to represent their clients interests in the civil proceedings but have a less central role. Nonetheless, as in Common Law, their tasks consist of advising their clients on legal questions and preparing their defence statement to present to the court. However, the importance of the spoken statements, court appearances and the active practice of the law in court is diminished in comparison to Common Law. Furthermore, the non-contentious legal tasks, such as preparing wills and writing contracts, can be left to quasi-legal professionals who provide services to businesses and individuals. They also do not need to have a postgraduate level education or be authorised to practice before a court.

In countries following the Common Law system, lawyers do presentations before a judge (sometimes in front of a jury) and interrogate the witnesses themselves. The proceedings are then "arbitrated" by the judge who has more flexibility than those in the Civil Law system to create the appropriate solutions at the end of the case. In those cases, the lawyers present themselves before the court and try to persuade others on issues of facts and law and maintain a very active role in judicial proceedings. In contrast to some Civil Law jurisdictions, in countries bound by Common Law, such as the United States, it is illegal for any person who is not a lawyer with a full degree to prepare any type of legal document for another person or company. Only lawyers are permitted to do so.

As these descriptions show, lawyers always have an important role to play in the formal resolution of the dispute regardless of the country they practice in. The specific tasks assigned to them, however, vary significantly. And outside the courtroom, the tasks typically undertaken by a lawyer in one country can be performed by a capable layperson in another.

To provide readers with a starting point, here are some examples of countries that either follow Common Law or Civil Law.

Common Law countries

• The United States
• England
• India
• Canada

Civil Law countries

• China
• Japan
• Germany
• France
• Spain