Civil law and common law

Among the major legal families existing today are the civil law and common law systems. Civil law comprises those systemseither based on or influenced to a greater or lesser extent byRoman law. These include the laws of most European continentalcountries – for example, France, Germany, Spain,Portugal, Italy, Greece, etc. Almost the entirety of South andCentral America has either inherited or adopted the civil law,with French law having had a major influence. Again, if onelooks towards Africa and considers countries such as Morocco,Algeria, Cameroon, Rwanda, and Madagascar, it can be seenthat, due to their historical links with mainland Europe, theybelong firmly to the civil law camp.Common law, on the other hand, is based on English law or,more accurately, the law of England and Wales. Scotland has aseparate legal system which, in the main, is based on civil law.Prior to Scotland’s union with England in 1707, the countryhad had close historical links with continental Europe, inparticular France. This exposure to European culture had amajor influence on the development of Scottish law. Althoughthere are areas of law which apply both to Scotland andEngland, the innate character of Scottish law stems from thefoundation of Roman law upon which it was built. The historical expansion of British interests throughout theworld during the eighteenth and nineteenth centuries also ledto the growth in the number of territories where the commonlaw held sway. Although the British Empire disappeared longago, the legacy lives on in the legal systems of many countriesacross the globe. Thus, within the common law family onewould place the law of Australia, New Zealand, the USA,Canada, Kenya, Zambia, Nigeria, the Indian subcontinent,Singapore, Malaysia, etc. Although countries following thecommon law tradition have often developed the law to reflectdifferences in culture and political and social organisation, itstill remains true that these systems owe many of their fundamentalattributes to the law of England and Wales.As a final point, it should be noted that some countries havea foot in both camps, operating within their borders elementsof both civil and common law. Such countries are referred to as mixed jurisdictions. Two examples can be found in the laws of theUSA and Canada. In the former, law-making powers exist at both federal and state levels. While federal law applies throughout the country, each of the fifty states which make up the Union enacts law for local application. While most state law is based on common law due to the historical British influence, Louisiana, being a former French colony, has bucked the trend and retained its allegiance to civil law. The French connection also holds sway north of the border in Canada, notably in Quebec which, in contrast to the common law tradition embraced by the other provinces, resolutely adheres to its civil law foundations. As explained above, Scottish law displays many civil law characteristics and to a certain extent, therefore, it could be said that the UK constitutes a mixed jurisdiction.

The civil law and common law systems are fundamentally different as regards concepts, vocabulary and legal method. Thus, for example, a French lawyer may have great difficulty in understanding the way in which an English lawyer approaches the solution of a legal problem and, of course, there verse is probably true. However, lawyers from two different countries but whose laws are within the same family will have much less difficulty in terms of communication and comprehension. So, although the laws of France and Germany differ in various respects, these differences are far outweighed by the similarity existing in fundamental concepts and approach. The same could be said of the law of England and Wales and that of Australia. In other words, within the same family there is a common legal language readily understood by those trained accordingly, but which creates the potential for confusion in the minds of those who are not. If a lawyer practising in a civil law country wants to know the legal rule applicable to a particular situation, the chances are that the answer will lie between the covers of one of the substantial volumes lining the office bookshelves. The reason for this is that civil law is a system giving pre-eminence to written law. In those countries embracing the civil law tradition, great tracts of the law are contained in codes, each containing a myriad of legal rules but structured in a way that is both logical and comprehensive. The cornerstone of the civil law edifice is the civil code. The civil code is a compendium of legal rules governing the relationship between private individuals. Typically, a civil code will be divided up into sections, each dealing with a different issue. Consider the French civil code (Code civil) by way of example. This code is divided into three Books, which in turn are divided into chapters. Book One deals with matters such as marriage, divorce, the status of minors, guardianship, domicile, etc. Book Two deals with the various kinds of property while Book Three covers a variety of matters, including succession, contracts both general and particular, delict (civil wrongs), matrimonial property, etc. The French civil code has been used as a model in many other countries worldwide. However, some countries, while still adhering to the civil law faith, have developed a style and approach of their own. A good example is the German civil code (the Burgerliches Gesetzbuch or ‘BGB’). Again, this code is divided into a number of Books, each dealing with a particular matter. However, the structure of the BGB is very different from that of the Code civil, as is the style in which it is written. The Code civil is often held up as jewel in the crown of legaldraftsmanship, embodying a clarity of exposition and eloquence of language which renders the law, theoretically at least, comprehensible to the man or woman in the street. The BGB, on the other hand, embraces a regime of almost mathematical abstraction in its endeavour to accommodate the infinite manifestations of human interaction within a rationale structure of legal rules. To the outsider, the result is as impenetrable as a hill fog. While the civil code is at the heart of systems based on the civil law tradition, it is not the only code. Sitting alongside the civil code one will typically find other codes dealing with specific issues – for example, the commercial code, which lays down special rules for those conducting business (merchants); the criminal code; the code of criminal procedure; the code of civil procedure; and so on. While civil law systems are essentially based on written law, English common law, on the other hand, is sometimes said to be ‘unwritten’. This does not mean to say that it exists only in the form of oral incantations, but reflects the idea that the law derives from sources other than written codes. Traditionally, common law evolved from the principles developed by judges when deciding cases before them. Over time, the concept of judicial precedent, as it is now known, became firmly established as one of the defining characteristics of the common law. Under this system a judge hearing a case will generally be bound by the legal principles underlying a previous decision of a higher court involving broadly similar facts. In the case of the common law, therefore, the courts have played a central role in developing the law. Although the bulk of ‘new’ law created today results from legislation enacted by the legislature and, in this sense, can be said to be ‘written’, it still remains true that the vast body of legal principle which forms the bedrock of common law has been the result of judicial creativity over hundreds of years. The consequence of all this, when compared with the sometimes abstract conceptualisation of civil law, is to give the common law a pragmatic flavour. Whereas the architect of a code must attempt to visualize problems which might lie ahead and provide legal rules to accommodate them, traditionally the common law judge hearing a case was faced with a problem which had already arisen and which required a resolution. Any principle of law that he formulated when applied to the facts had to produce a sensible and practical result. While it is true to say that written codes do not characterize English law and other systems following the common law tradition, this is not to say that codification never plays a part. Indeed, certain areas of English law, effectively, have been codified. However, where this has happened, it represents an essentially different exercise from that found in civil law systems. Whereas the architect of a civil law code is very often designing a framework of rules virtually from scratch, the codification of English law, where this has occurred, has usually involved the draftsman collating into a structured and accessible single source the law relating to a particular subject which had previously been contained in a vast array of judicial precedents and/or statutory provisions. Although the procedure may very well include the modernisation of some of the legal principles involved, essentially it is not a process of invention. Two examples from English law are the Sale of Goods Act 1979 and the Partnership Act 1890. The former provides a comprehensive set of rules governing contracts for the sale of goods, whereas the latter effectively codifies the previous law relating to business partnerships. Similarly, in the USA, the Uniform Commercial Code consists of a uniform system of rules regulating many forms of commercial activity, such as the sale and leasing of goods, negotiable instruments, bank deposits and collections, letters of credit, bills of lading, etc. The UCC, as it is known, has been incorporated into the law of all states except Louisiana which, nevertheless, has adopted most of it. In Canada, on the other hand, the entirety of criminal law has been incorporated into a single Criminal Code.