8 Part G Common law and civil law systems
8.1 The differences between common law and civil law systems
Having explored the origins and development of the common law and its characteristics, the final part of this course will compare and contrast the common law with civil legal systems.
The terms common law system and civil law system are used to distinguish two distinct legal systems and approaches to law. The use of the term ‘common law’ in this context refers to all those legal systems which have adopted the historic English legal system. Foremost amongst these is, of course, the United States, but many other Commonwealth and former Commonwealth countries retain a common law system. The term ‘civil law’ refers to those other jurisdictions which have adopted the European continental system of law derived essentially from ancient Roman law, but owing much to the Germanic tradition.
The usual distinction to be made between the two systems is that the common law system tends to be case-centred and hence judge-centred, allowing scope for a discretionary, pragmatic approach to the particular problems that appear before the courts. The law can be developed on a case-by-case basis. On the other hand, the civil law system tends to be a codified body of general abstract principles which control the exercise of judicial discretion. In reality, both these views are extremes, with the former overemphasising the extent to which the common law judges can impose their discretion and the latter underestimating the extent to which civil law judges have the power to exercise judicial discretion. It is perhaps worth mentioning at this point that the European Court of Justice, established, in theory, on civil law principles, is, in practice, increasingly recognising the benefits of establishing a body of case law. Although the European Court of Justice is not bound by the operation of the doctrine of stare decisis, it still does not decide individual cases on an individual basis without reference to its previous decisions.
Activity 17 Common law
This activity builds on what you have just read about the differences between the systems of common and civil law. It is an extract from the BBC Radio 4 Unreliable Evidence programme broadcast in 2004. While listening, you may want to take notes. Listen in particular to what is said about the relationship between common law and civil law systems.
'Common law' part 1
'Common law' part 2
The discussions ended with the conclusion that neither system would extinguish the other as both had useful features. What was in fact happening was that the two systems were adapting features from each other. You may also have found it surprising to listen to the discussion of the backgrounds of some of the members of the European Court of Human Rights, as here the contributors clearly had different views.