Common vs. Civil Law from Legal Point of View

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In any given nation, legal systems can be used to maintain the status quo, safeguard individual rights, protect the disadvantaged from the majorities, promote social justice, enhance human rights, and provide for harmonious social reform. However, there arise difficulties in what type of legal system to use in achieving the functions named earlier due to various legal systems in the world. These legal systems include civil laws, Islamic laws, and common laws. This paper’s scope will primarily focus on the difference between the civil laws – where all legal laws are contained in one or more extensive statutory enactments and majorly apply in countries such as China, France, Germany, and Spain and the common laws – that is peculiar to England and former British Empire colonies. While the civil law and standard law systems deal with many of the same legal concerns, there are substantial variations between the two legal systems regarding legal framework, taxonomy, core principles, and vocabulary.

First, the binding effect of precedents is one of the primary distinctions between common and civil law systems. Precedents can be viewed as prima facie justifications to exclude numerous other explanations from legal argumentation (Peczenik, 2016). It arises whenever a court is examining a case where the court must refer to an earlier point ruled as precedent if the facts of the case are similar. The court is projected to reference some legal concepts from earlier claims pertinent to the latest issue when rendering its ruling (Nor Muhammad et al., 2020). In case law or common law, an agreement is not enforceable unless backed up by consideration.

On the contrary, in civil law, mechanisms do not have binding force since the adjudicators’ job in civil law is to establish the case’s circumstances and select the correct code’s requirements. While the judge frequently brings formal accusations, examines the problem, and resolves the appeal, he or she does so within the confines of a thorough, codified body of laws. As a result, the judge’s decision has less influence on the development of civil law than the judgments of lawmakers and legal experts who write and analyze the codes. For instance, according to Al-Hajri and Zafar Muhammad (2018), article 1131 of the French Civil Code, an agreement entered into without cause or based on an untrue or unlawful reason is void, implying that an entity may enter into an extra contract obligating him to fulfill a commitment for the benefit of the other entity without receiving anything in return.

Secondly, the distinction between civil laws and common laws can be examined regarding their historical backgrounds leading to their existence and formation. England’s common law was substantially established following the Norman Conquest of 1066 Angelucci and Voigtländer, 2018). Further, the Anglo-Saxons, particularly after Alfred the Great’s arrival, created a set of norms matching those used by northern Europe’s Germanic peoples. The common law is characterized by local customs ruling most issues, but religion plays a significant role in governance. Crimes were viewed as wrongdoings for which the victim was compensated. Although the conquest of the Normans did not initially end Anglo-Saxon law, colonial administration by the primarily Norman conquerors brought about change. The land was allotted to the king’s feudal vassals, most of whom had participated in the invasion specifically for this compensation. Serious wrongs were primarily viewed as public offenses rather than personal problems, and violators faced the death penalty and property forfeiture.

On the contrary, Civil law emerged as a consequence of the Civil Code of 1804 in France, and it unified French civil law (Al-Hajri and Zafar Muhammad, 2018). The Civil Code was constructed as a series of brief articles on the assumption that lawmakers could not anticipate all possible scenarios in life. Secondly, that only clarity could make the instrument adaptable to new conditions. The code’s authors found no conflict between reason and experience since it depended heavily on knowledge. The French Civil Code incorporates many of the criteria outlined in ancient Rome, although its legislation is contemporaneous.

Additionally, marriage was established only as a civil contract; divorce became authorized; paternal control was restricted, and parental approval was unnecessary for children above 21. A brief experiment was conducted with family courts given the authority to reject paternal decisions and deemed the wife equivalent to her husband. In succession matters, equal shares of wealth were allotted to each child.

Another distinction between civil law and case law can be assessed in terms of the different cultural and religious backgrounds. Liedhegener and Odermatt (2018), in their statistical representation of religion distribution in Europe, show that the population of southern Europe is catholic, whereas the northern population is protestant. Protestantism began with Luther’s rejection of the Catholic priesthood’s ability to intervene between a man and God, rejecting the Catholic religion supporting a philosophy based directly on the Bible. Witte (2017) elaborates further that protestants viewed the Bible as containing every piece of law necessary for practical Christian living and that subtracting from the Bible’s law is blasphemy, consequently adding that to add to the Bible’s law is tyranny.

In Lutheran theology, the Church was to be reduced to a spiritual community: the unseen congregation of all believers rather than a law-making institution (Witte, 2017). As such, as portrayed by the Protestants, the common law is a system of judge-made law. Although it is a case law system, the premise is that the authorities should abstain from interfering in interpersonal relationships. The persons must be able to explore their connection in any way they like through a contract. When the state intervenes in the relationship between private individuals, it is an endeavor at liberty. They have authority, but their primary responsibility is to present the nation and the population to the rest of the world.

The southern population was more catholic about matters of religion. Witte (2017) stipulates that the Catholic Church maintained that God’s creation followed a hierarchical pattern – multiple paths originating from God and down through many degrees and strata of reality. Each organism discovered its place and purpose inside this vast chain of being, and each human culture found its natural balance and order therein. As such, from this perspective, civil laws are seen as legislative systems. There is a widespread influence at the top, and the authority communicates directly to the people through a ladder of intermediaries. In particular, the administration has direct control over interpersonal relationships.

Lastly, the difference could be based on the roles the lawyers and judges play in each legal system. For instance, lawyers and judges are frequently referred to as investigators in civil law countries. They typically initiate actions by filing charges, proving facts through witness examination, and enforcing law provisions. Lawyers continue to represent their clients’ interests in civil courts. However, their function is diminished, whereas lawyers make submissions to the judge and occasionally to the jury and cross-examine witnesses in an ordinary law jurisdiction. The judge then refers the case to an available bench (Llewellyn, 2016), which has slightly more discretion than in a civil law system in devising an acceptable solution at the end of the trial. In certain instances, lawyers appear in court and try to convince others on law and evidence while being active participants in judicial procedures.

From the above discussion, it is clearly noticeable that legal systems form an integral part of any country’s judicial system when it comes to how the different countries and societies apply them in maintaining and promoting social justice, maintaining the status quo, safeguarding individual rights, protecting disadvantaged from the majorities, enhancing human rights, and providing for harmonious social reforms. Given that the standard and civil legal systems evolved from profoundly dissimilar methodologies to the judicial process, the common law and the civil law have demonstrated an extraordinary degree of consistency in handling most legal matters. In the changing current world, and with citizens’ varying cultural and religious backgrounds in various nations and countries, the proper legal system, standard, civil, and Islamic laws should be employed. Depending on the legal system chosen, that is, either common law or civil law, the case outcomes and judgments given should be fair enough not to undermine the rights of those involved.

References

Al-Hajri, P.M., & Zafar Muhammad (2018). The English Common Law and French Civil Code: A Dialogic Analysis of private Law and Interpretational Variances (special study on the law of contract and tort). 8(4), 635-690.‎ Web.

Angelucci, C., Meraglia, S., & Voigtländer, N. (2017). The medieval roots of inclusive institutions: From the Norman conquest of England to the great reform act (No. w23606). National Bureau of Economic Research.

Liedhegener, A., & Odermatt, A. (2018). Religious affiliation as a baseline for religious diversity in contemporary Europe. Making Sense of Numbers, Wordings, and Cultural Meanings. Web.

Llewellyn, K. N. (2016). The common law tradition: Deciding Appeals. Quid Pro Books.

Nor Muhamad, N. H., Kamarudin, M. K., Samat Durawi, A. B., Mohd Noor, S. S., Hassan, A. M., & Ruskam, A. (2020). Application of the Doctrine of Binding Precedent in Malaysia: A Re-Evaluation. J. Pol. & L., 13, 263. Web.

Peczenik, A. (2016). The binding force of precedent. In Interpreting Precedents (pp. 461-479). Routledge.

Witte, J. (2017). From Gospel to Law: The Lutheran Reformation and Its Impact on Legal Culture. Ecclesiastical Law Journal, 19(3), 271-291. Web.

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Common vs. Civil Law from Legal Point of View

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