What is Common Law vs. Civil Law?

Written by Christi Hayes and Fact Checked by The Law Dictionary Staff  

Many nations today practice either a common law or civil law system of justice. While common law originates in Medieval England, civil law traces its origins back to the Roman Empire (and, subsequently, Continental Europe). Although both systems originate in Europe, they have been exported to many other countries, either through colonization or other means. Because common law and civil law are fundamental concepts for justice systems around the world, they are essential to understand for anyone who wants to learn more about legal tradition, either at home or abroad.

What is common law?

Common law comes from Medieval England, specifically in the aftermath of the Norman Conquest of 1066. Because common law is the foundation of the English legal system, it has been exported to many countries that have had historical ties with England, such as the United States and much of the Commonwealth. The distinguishing characteristic of common law is that it is based more on precedent than on a codified set of laws and regulations. Judges hold immense power in a common law system, since the decisions that a court makes are then used as a precedent for future court cases. While common law systems do have laws that are created by legislators, it is up to judges to interpret those laws and apply them to individual cases. To do this, judges rely on the precedents set by previous courts. In common law countries, certain courts, such as the Supreme Court of the United States, have the ability to strike down laws that were passed by legislators if those laws violated the Law of the Land (i.e., the Constitution).

What is civil law? 

Civil law goes all the way back to Roman times when Emperor Justinian codified all of the Empire's laws in the sixth century CE. Civil law was subsequently revived in much of Medieval Europe and serves as the foundation for the legal systems of countries like France, Spain, and Portugal, along with many of their former colonies, including the province of Quebec and the state of Louisiana (which both exist in countries that are otherwise dominated by common law tradition). Civil law has also been used by non-European countries that were never colonized, such as Russia and Japan, as the basis of their own legal reforms. Common law places much less of an emphasis on precedent than it does on the actual codification of the law. Civil law systems rely on a large legal code that is constantly updated and which establishes legal procedures, punishments, and what can and cannot be brought before a court. In a civil law system, a judge merely establishes the facts of a case and then judges that case based on the procedures laid down by the legal code. As a result, precedent and judicial decisions have limited influence in a civil law system. Rather, lawmakers, scholars, and legal experts who help craft the legal code hold much more sway over how the legal system is ultimately administered.

 Common law and civil law, while both originating in Europe, have become truly global legal traditions. Despite going back hundreds and even thousands of years, both systems have continued to effectively shape the justice systems of hundreds of countries well into the 21st century.

More On This Topic



Comments are closed.