What is the difference between common law and civil law?
In the summer of 2013, British royalists eagerly awaited the birth of the Duke and Duchess of Cambridge’s first child. If the couple had had a daughter instead of the right Prince George, she would have been the first daughter to be able to ascend the throne before the younger brothers. It was thanks to a law enacted in 2011 that changed the rules of royal succession. The previous law according to which sons took precedence over older sisters was never written, but rather formed part of English common law, the basis of the country’s legal system. But what is common law and how does it differ from the civil law system used in some other countries?
Common law is a particularly English development. Before the Norman Conquest, different rules and customs applied in different regions of the country. But after 1066, the monarchs began to unite both the country and its laws using the king’s court. The judges created a common law based on the customs of the whole country and the rulings of the monarchs. These rules developed organically and were rarely written down. In contrast, European rulers drew inspiration from Roman law, and in particular from a compilation of rules issued by Emperor Justinian in the 6th century which was rediscovered in 11th century Italy. With the Enlightenment of the 18th century, the rulers of various continental countries sought to produce comprehensive legal codes.
Today, the difference between common and civil legal traditions lies in the main source of law. Although common law systems make extensive use of statutes, court cases are considered the most important source of law, giving judges an active role in rule making. For example, the elements necessary to prove the crime of murder are contained in case law rather than defined by law. To ensure consistency, courts follow precedents set by higher courts dealing with the same issue. In civil law systems, by contrast, codes and laws are designed to cover all eventualities and judges have a more limited law enforcement role in the case at hand. Past judgments are just cowardly guides. When it comes to court cases, judges in civil law systems tend to be investigators, while their peers in common law systems act as arbitrators between parties presenting their cases.
Civil law systems are more widespread than common law systems: the CIA World Factbook assesses 150 and 80 countries respectively. Common law systems are only found in countries that are former English colonies or have been influenced by the Anglo-Saxon tradition, such as Australia, India, Canada, and the United States. Lawyers in civil law jurisdictions like to think of their system as more stable and fairer than common law systems, because the laws are stated explicitly and are easier to discern. But English lawyers pride themselves on the flexibility of their system, as it can adapt quickly to circumstances without the need for Parliament to legislate. In fact, many systems are now a blend of the two traditions, giving them the best of both legal worlds.
These first two lines of this piece have been updated December 2, 2015 to change times and reflect the birth of Prince George.