Common Law & Civil Law

In the history of humanity there are only two great systems of law, the civil law of ancient Rome and the common law of England. Most civilized nations of the world are governed by either of these two schemes of justice. Common law and civil law may seem quite similar to each other; yet there are significant differences between each two that inevitably turn them into opposites.

In the beginning The English Court of Common Pleas dealt with lawsuits made by commoners, which the King had no interest in. It is believed that from at least the 11th century, different circuits existed in the Royal court system in which itinerant judges would travel from town to town dispensing the King's justice. Although this is not completely proven nor stated as a definite origin of common law.

The term "common law" is of English origin and is used to describe the juridical principles and general rules, which regulate the possession, use and inheritance of property and thus the conduct of individuals. As I have mentioned before most usages of common law derived from the “lex scripta", that dictates imperial or kingly edicts as a way of legislation.

Common law represents the decision of the courts as expressed in judicial decisions. The decisions in cases are established on the grounds of Precedents, which are already provided by past cases decisions, in contrast to civil law of which decisions are based on statutes and prescribed texts.

Common law cases consist of trial by jury and the doctrine of the supremacy of the law.
Supremacy of the law originally meant that not even the King was above the law; today it only states that the acts of governmental agencies are subject to scrutiny in ordinary legal proceedings.

Judicial precedents derive from the principle of "stare decisis", meaning in Latin to stand by the decided matter. Most of the time the matter would be previous decisions of the highest court in the jurisdiction binding on all of the other courts of the jurisdiction.

Civil law or continental law, is today the predominant system of law in the world and
It originally has its roots on Roman law, Canon law and the Enlightenment.

The civil law system is based on the Corpus Juris Civilis of Emperor Justinian; medieval scholars later developed it.

It has been accepted by most countries but applied different, in some it became a positive law whereas in others it became as a way of processing for legal theorists, it did not completely dominate in Europe, it was rather applied as a secondary source, when local customs and local laws lacked a pertinent provision on a particular matter.

Civil law was developed as a concept of codification, as a response to Natural Law ideas and the Enlightenment. The predominant political ideal was expressed as a concept of democracy, protection of property and the rule of law.

Countries that apply the civil law system, legislation are seen as a primary source of law, by default, courts base their judgements on the provisions of codes and statutes, from which solutions of particular cases are to be derived. Courts are obliged then to reason extensively on the basis of general rules and principles of code, analogies are made from statutory provisions to fill in the lacunae and to achieve coherence.

The first civil code in the >Americas appeared in 1804 and was promulgated by the state of Louisiana, inspired by the French civil code known as Projet de l’an VIII.
Despite a promulgation of civil law codes, American law is based in collections of common law and a variety of ad hoc statutes.
The First civil code to appear in Latin America was promulgated by the sate of Oaxaca in 1827, and was based on the French civil code.






Common law and civil law have often been compared. Primarily common law was formed out of custom, whereas the Roman civil law was formed under the principle of “Jurius Civilis”.

Civil law was later codified as “droit coutumier”, which allegedly stated a series of legal principles that were recognized as normative. With the enlightenment is that the first attempts to codify the law as private appeared. Civil codes were promulgated as such with the arrival of the French revolution and the Napoleonic code.

As such the difference between common law and civil law lies not only on the fact of civil law codification, but rather on the civil law’s methodological approach to codes and statutes. In most areas of common law, most areas of the United States there are statutes enacted by a legislature, this again is enacted by executive branch agencies delegating on rules and the creation of those as an authoritative legislature, or “case law.”
In England, common law is the customary law of the land, as distinct from statute law which is made by Parliament. Common law cover both criminal and civil matters.
Crime would be a crime in common law.

Civil law infers that part of the law does not deal with criminal matters, such as law of contract or tort. France and Germany both have civil law system which again it reflects on a body of law passed by Parliament, that refers in each individual case and there are no binding precedents.
In common law systems, the law continually evolves in addition to being amended by laws passed by Parliament: If a higher court has previously interpreted a statute in a particular law this cannot be overridden by a lower court. Thee decision of the higher court would be a binding precedent.
In addition criminal law relates to murder, thefts, etc. Civil law in such terns relates to contractual disputes.