The common law system is often less prescriptive than the civil law system. As a result, a government may desire to incorporate the rights of its citizens in legislation linked to the proposed infrastructure development. Alternatively, the government could ask for transaction-related records to be made public under the Freedom of Information Act. There are few implicit provisions in a contract under the common law system. As a result, it’s critical to include all parameters governing the parties’ relationship in the contract itself. Civil law systems, often known as continental or Romano-Germanic legal systems, are found on all continents and account for over 60% of the global population. Though secularized over the centuries and focusing more on individual liberty, the civil law tradition encourages human cooperation. In more clearer terms civil law refers to the law that governs people, things, and the interactions that form between them, omitting not just criminal law but also commercial law, labor law, and so on. Most civil law countries codified their laws, like France made French Code civil and German developed the German BGB.
Historical Origin
Common Law
The common law system was founded by the English Crown, through issuing written directives called “writs”. But because writs were insufficient to cover all situations, equity courts were established to hear complaints and devise appropriate remedies based on equitable principles taken from various sources of authority, including Roman and “natural” law. It became possible for courts to track down precedents and apply them to contemporary cases, collating and publishing rulings. Common law arose as a result of this process. The English-speaking world, for the most part, functions under common law.
Civil Law
Civil law can be traced back to a set of regulations devised by the Roman Emperor Justinian approximately 600 C.E. in several European countries. Authoritative legal codes based on these rules evolved throughout centuries in various countries, resulting in similar legal systems. Also, civil law emerged at the same time in continental Europe and was used in the colonies of European imperial powers like Spain and Portugal.
Role of Lawyers and Judges
Common Law: Judges are frequently referred to as ‘investigators’ in civil law countries. They usually result in filing charges, verifying facts through witness interviews, and implementing legal solutions. Lawyers represent their clients in civil proceedings. However, similar to common law regimes, their responsibilities often include providing legal advice to clients and drafting legal petitions for submission to the court.
Oral argument, in-court submissions, and active layering in court, on the other hand, are less important in a common law system. Non-litigation legal services, such as will writing and contract drafting, may also be delegated to quasi-legal experts who assist corporations and private individuals but do not have post-secondary legal education or are not licensed to practice before courts.
Civil Law: Attorneys present their cases to the judge and, also examine witnesses in a common-law country. The proceedings are then “refereed” by the judge. Attorneys appear in court to persuade individuals on legal and factual matters and even participate actively in judicial proceedings in some cases. Furthermore, unlike in some civil law jurisdictions, it is illegal in common law countries, such as the United States, for anybody other than a properly licensed lawyer to generate legal papers of any kind for another person or corporation.
Regardless of where they practice, lawyers play a critical role in formal conflict resolution. However, the specific responsibilities that they are assigned to tend to vary quite a little. Outside the courtroom, tasks that lawyers in one country would ordinarily perform may be performed by qualified laypeople in another. In a civil law system, a judge’s role is limited to establishing the facts of a case and applying legal remedies. As a result, legislators, scholars, and legal experts wield far greater power over the administration of justice than judges.
Difference Between Common Law and Civil Law
The legal process approach
The common law and civil law legal systems result from fundamentally distinct approaches to the legal process. The fundamental concepts and norms of civil law are codified in statutes and codes applied by the courts. As a result, codes and laws are the primary sources of law, with case law as a backup. In the common law system, on the other hand, the law has mostly been shaped by court decisions.
Role of the legislator
Civil law is founded on the idea of separation of powers, which states that the legislature’s job is to legislate, while the role of the judiciary is to carry out the law. The courts, on the other hand, are responsible for establishing the law in the common law.
Lawyer’s Approach
Civil law is based on codes that incorporate logically related concepts and rules, beginning with fundamental principles and moving to specific laws. A civil lawyer frequently starts with a legal standard established in legislation and works backward to conclude the issue. On the other hand, a common-law lawyer starts with the facts of the case and compares them to similar or identical legal issues that courts have addressed in previously decided cases and then infer the binding legal rule from these precedents. Attorneys in civil law countries are regarded to be more intellectual. In contrast, lawyers in common law countries are more practical due to this fundamental contrast between the two systems.
Precedents have a binding effect
The basic task of the courts in the civil law system is to resolve specific issues by applying and interpreting legal rules. The courts in the common law system are expected to resolve conflicts between specific parties and provide guidelines on how similar problems should be resolved in the future. The foundation for interpreting legislation continues to be court rulings under common law since the court’s interpretation of its legislation in a very specific case is binding on subordinate courts.
A contract’s binding impact
In common law, a contract has no binding force unless it is backed by consideration. According to the principle of consideration, a contract must be backed by something of value, such as a party’s promise to supply products or services or to pay for those goods or services. On the other hand, a contract cannot exist without a valid reason under civil law. The cause/reason is why a party enters into a contract and agrees to perform contractual obligations.
Because only one person who has given consideration can enforce a contract, a party may enter into a gratuitous contract that binds him to perform an obligation for the other party’s benefit without receiving any remuneration.
Conclusion
Rather than the content of legal rules, the distinction between civil law and common law regimes are focused on reasoning tactics and approaches. Civil and common law use different ways to attain the same goal, and identical results are usually reached through different reasoning. Because the subject matter of legal regulation and the underlying ideals in all legal systems are nearly identical, the fact that common law and civil law arrive at the same or comparable results despite employing different means is not surprising.
There are no identical legal systems, and unfamiliarity with foreign laws and judicial processes might be a barrier when establishing a business abroad. This emphasizes the importance of having competent legal counsel to prevent potentially costly legal issues.