The legal systems of the world can be classified into two broad categories – civil law and common law. While some countries follow the civil law system, others follow the common law system. The two systems have their differences in terms of their history, structure, and approach to justice. This article aims to provide a comparative analysis of civil law and common law systems.
Civil Law System
The civil law system is based on Roman law and is also known as the continental law system. It is prevalent in most countries of Europe, Latin America, and parts of Asia and Africa. The civil law system is codified, which means that the laws are written down in a comprehensive legal code. The legal code is the primary source of law in civil law systems, and judges are expected to apply the laws as they are written.
The civil law system operates on the principle of legal positivism, which means that the law is the supreme authority in society. Judges in civil law systems are not free to interpret the law or make new laws. Their role is to apply the existing laws to the facts of the case and reach a decision based on the law. The legal system in civil law countries is often characterized by an inquisitorial system of justice, where the judge takes an active role in investigating the case and gathering evidence.
Common Law System
The common law system is based on English law and is prevalent in most English-speaking countries, including the United States, Canada, Australia, and the United Kingdom. The common law system is not codified, which means that the law is not written down in a comprehensive legal code. Instead, the law is based on precedent, which means that judges are bound by previous decisions of higher courts.
The common law system operates on the principle of judicial precedent, which means that judges are free to interpret the law and make new laws. The legal system in common law countries is often characterized by an adversarial system of justice, where the parties to the case present their arguments to the judge, and the judge makes a decision based on the arguments presented.
Comparative Analysis
There are several differences between the civil law and common law systems. The civil law system is codified, while the common law system is based on precedent. In the civil law system, judges are expected to apply the law as it is written, while in the common law system, judges are free to interpret the law and make new laws.
The legal system in civil law countries is often characterized by an inquisitorial system of justice, while the legal system in common law countries is often characterized by an adversarial system of justice. In the inquisitorial system, the judge takes an active role in investigating the case, while in the adversarial system, the parties to the case present their arguments to the judge.
Another difference between the two systems is the role of judges in the legal system. In the civil law system, judges are seen as passive interpreters of the law, while in the common law system, judges are seen as active participants in the development of the law. This difference can be seen in the way judges are appointed. In civil law countries, judges are often appointed based on their legal expertise, while in common law countries, judges are often appointed based on their political affiliations.
The civil law and common law systems have their differences in terms of their history, structure, and approach to justice. While the civil law system is codified and based on legal positivism, the common law system is based on precedent and judicial precedent. The legal system in civil law countries is often characterized by an inquisitorial system of justice, while the legal system in common law countries is often characterized by an adversarial system of justice. The two systems have their strengths and weaknesses, and it is up to individual countries to decide which system they want to adopt.
