Civil law and customary law: total oppositions or a big difference?



The constant convergence of the two systems

Common law and civil law are the two main legal systems operating across the world.

These systems are inherently separate and distinct. Traditionally, jurisprudence is the main source of law in the common law system, and written law that of the civil law system. Most people think of judicial activism as an attribute of the common law, while civil judges are more passive.

But the dividing line is no longer so clear: many factors have contributed to the reduction of these differences, leading to their convergence.

Characteristics of the two systems

The majority of English-speaking countries practice common law, such as England, the United States and Hong Kong. Civil law is practiced by the majority of European countries and South American countries as well as by China.

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The most prevalent feature of civil law is its rules-based nature: the fundamental principles of law are codified. However, civil law countries are now adopting a more jurisprudential approach. For example, all French codes contain several case law references under each law to explain the meaning of its wording. French jurist Portalis said in a preliminary speech delivered during the presentation of the draft civil code in 1827:

The function of the law is to fix, in their broad outline, the general maxims of justice, to establish principles rich in suggestiveness, and not to go down in the details.

Some terms used in the French Civil Code are obsolete (it was first published in 1804) and are too short to be used correctly. For example, theft is described by article 311-1 of the French Penal Code as “the fraudulent removal of something from someone”. Such a formulation does not specify whether the offense covers only the theft of tangible goods or also that of intangible goods. Recently, the Court of Cassation (the highest French court) ruled that an employee who had stolen information from his employer’s computer had committed theft. This decision was published and therefore proclaimed as a principle. Consequently, case law helps to fill the gaps left by general laws.

Another example, article L711-3 of the French Intellectual Property Code, which stipulates that trademarks must not be contrary to good morals. As morality evolves over time, judges must interpret and develop the scope of morality.

And many common law countries are now codifying their law. For example, Hong Kong passed the Service Provision Ordinance which stipulated that if the parties to an agreement were silent on the price, the buyer must pay a reasonable price. French law also defends this principle with regard to the provision of services.

Hong Kong has also passed the Misrepresentation Ordinance under which the representative is liable for negligent misrepresentation. Although some case law already covered representative’s liability prior to the promulgation of this Order, lawyers will most likely base their arguments on the new Order as earlier cases only covered fraudulent or negligent misrepresentation, while the The ordinance covers negligent misrepresentation as if they were fraudulent misrepresentation, allowing recovery of all losses.


Stare decisis is the principle that lower courts are bound by the decisions of higher courts. This is meant to be strictly followed by common law judges. However, they apply it flexibly, because – as Zweigert and Kotz explain – they will not follow a decision that appears unsatisfactory because the ratio decidendi does not cover the pending litigation.

A judge will also be likely to set aside a previous precedent to meet “the needs and interests of the time”. Take the MacPherson case where English judges overturned the doctrine holding a manufacturer “liable to persons other than his immediate purchaser for damage caused as a foreseeable result of his negligence” only if the goods were inherently dangerous. This overshoot was once again justified by social proposals.

It therefore seems that the differences between the two systems are more in form than in substance – at least compared to other legal systems such as Islamic law which is based on the law of God – because the civil law and the common law have similar objectives. This convergence serves a more harmonized international integration and allows the success of treaties between countries of different legal systems, such as the European Convention on Human Rights.

Katia Beider is a law student at the Chinese University of Hong Kong.


Melvin, E, The Nature of Common Law, (Harvard, 1991)

Merryman, J, “On the Convergence and Divergence of Civil Law and Common Law”, Stanford Journal of International Law, 1981

Zweigert and Kotz, An introduction to comparative law, 3rd edition, 1998


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