The Common Law and Civil Law Traditions
In law, common law is that body of law not binding) in civil law countries, and the growing importance of statute law and codes in common law countries. What's the difference between Common Law and Statutory Law? The laws governing a country or nation are important aspects of its existence and in a way are. law. But now that this fairy tale has been abandoned, the relationship between common law and statute law must be seen as the relationship between two.
To an American familiar with the terminology and process of our legal system, which is based on English common law, civil law systems can be unfamiliar and confusing. Even though England had many profound cultural ties to the rest of Europe in the Middle Ages, its legal tradition developed differently from that of the continent for a number of historical reasons, and one of the most fundamental ways in which they diverged was in the establishment of judicial decisions as the basis of common law and legislative decisions as the basis of civil law.
Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases.
These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports.
Legislation vs Common Law
The precedents to be applied in the decision of each new case are determined by the presiding judge. As a result, judges have an enormous role in shaping American and British law. Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. A jury of ordinary people without legal training decides on the facts of the case. Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense.
Such codes distinguish between different categories of law: Though the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws. The following sections explore the historical roots of these differences. Basilica of San Vitale, Ravenna, Italy.
The term civil law derives from the Latin ius civile, the law applicable to all Roman cives or citizens. Its origins and model are to be found in the monumental compilation of Roman law commissioned by the Emperor Justinian in the sixth century CE.
While this compilation was lost to the West within decades of its creation, it was rediscovered and made the basis for legal instruction in eleventh-century Italy and in the sixteenth century came to be known as Corpus iuris civilis. Succeeding generations of legal scholars throughout Europe adapted the principles of ancient Roman law in the Corpus iuris civilis to contemporary needs. Many times statutory law can be interpreted differently by different people. This is why making rulings based on precedent in common law systems can be beneficial when the meaning of a law is disputed.
When the facts of a case are unique and there is no binding precedent, these are called cases of first impression. The main differentiation between common law and statutory law is the way in which the laws are created. As stated above, common law comes from precedent. Statutory law is made by the Government.
It is designed to keep citizens safe as well as ensure that citizens are able to function in everyday life. If there is an issue before the court that absolutely cannot be decided by precedent or a judge's decision, the court may turn to statutory law to decide the case.
Other connotations from past centuries are sometimes seen, and are sometimes heard in everyday speech. For example, the law in most Anglo-American jurisdictions includes " statutory law " enacted by a legislature" regulatory law " in the U. Examples include most criminal law and procedural law before the 20th century, and even today, most contract law  and the law of torts.
This body of common law, sometimes called "interstitial common law", includes judicial interpretation of the Constitutionof legislative statutes, and of agency regulationsand the application of law to specific facts.
Common law legal systems as opposed to civil law legal systems [ edit ] Black's Law Dictionary 10th Ed. Civil law judges tend to give less weight to judicial precedent, which means that a civil law judge deciding a given case has more freedom to interpret the text of a statute independently compared to a common law judge in the same circumstancesand therefore less predictably. For example, the Napoleonic code expressly forbade French judges to pronounce general principles of law.
Common law systems trace their history to England, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law. This split propagated to many of the colonies, including the United States. In New Jersey, the appellate courts are unified, but the trial courts are organized into a Chancery Division and a Law Division. For most purposes, most jurisdictions, including the U.
Nonetheless, the historical distinction between "law" and "equity" remains important today when the case involves issues such as the following: Courts of equity rely on common law principles of binding precedent. Archaic meanings and historical uses [ edit ] In addition, there are several historical but now archaic uses of the term that, while no longer current, provide background context that assists in understanding the meaning of "common law" today.
In one usage that is now archaic, but that gives insight into the history of the common law, "common law" referred to the pre-Christian system of law, imported by the Saxons to England, and dating to before the Norman conquestand before there was any consistent law to be applied.
Common Law V Statutory Law - Common | jingle-bells.info
It is both underinclusive and overinclusive, as discussed in the section on "misconceptions". While historically the ius commune became a secure point of reference in continental European legal systems, in England it was not a point of reference at all.
Black's Law Dictionary 10th Ed. The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit. Holmes pointed out that the older view worked undesirable and unjust results, and hampered a proper development of the law.
All three tensions resolve under the modern view: Rather, the common law evolves daily and immediately as courts issue precedential decisions as explained later in this articleand all parties in the legal system courts, lawyers, and all others are responsible for up-to-date knowledge. Among legal professionals lawyers and judgesthe change in understanding occurred in the late 19th and early 20th centuries as explained later in this article though lay dictionaries were decades behind in recognizing the change.
Common law exists in writing—as must any law that is to be applied consistently—in the written decisions of judges. Rather, the common law is often anti-majoritarian. Then, one must locate any relevant statutes and cases.
Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts.
Then, one applies that law to the facts. In practice, common law systems are considerably more complicated than the simplified system described above. The decisions of a court are binding only in a particular jurisdictionand even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority.
Interactions between common law, constitutional lawstatutory law and regulatory law also give rise to considerable complexity. The common law evolves to meet changing social needs and improved understanding [ edit ] Nomination of Oliver Wendell Holmes to serve on the U. Oliver Wendell Holmes, Jr. First, common law courts are not absolutely bound by precedent, but can when extraordinarily good reason is shown reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy.
Second, the common law evolves through a series of gradual stepsthat gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects. For these reasons, legislative changes tend to be large, jarring and disruptive sometimes positively, sometimes negatively, and sometimes with unintended consequences. One example of the gradual change that typifies evolution of the common law is the gradual change in liability for negligence.
The traditional common law rule through most of the 19th century was that a plaintiff could not recover for a defendant's negligent production or distribution of a harmful instrumentality unless the two were in privity of contract. Thus, only the immediate purchaser could recover for a product defect, and if a part was built up out of parts from parts manufacturers, the ultimate buyer could not recover for injury caused by a defect in the part.
In an English case, Winterbottom v. Wright the postal service had contracted with Wright to maintain its coaches. Winterbottom was a driver for the post. When the coach failed and injured Winterbottom, he sued Wright. The Winterbottom court recognized that there would be "absurd and outrageous consequences" if an injured person could sue any person peripherally involved, and knew it had to draw a line somewhere, a limit on the causal connection between the negligent conduct and the injury.
The court looked to the contractual relationships, and held that liability would only flow as far as the person in immediate contract "privity" with the negligent party. A first exception to this rule arose inin the case of Thomas v.