Explanation:
Most nations today follow one of two major legal traditions: common law or civil law. The
common law tradition emerged in England during
the Middle Ages and was applied within British
colonies across continents. The civil law tradition
developed in continental Europe at the same time
and was applied in the colonies of European imperial powers such as Spain and Portugal. Civil law
was also adopted in the nineteenth and twentieth
centuries by countries formerly possessing distinctive legal traditions, such as Russia and Japan, that
sought to reform their legal systems in order to
gain economic and political power comparable to
that of Western European nation-states.
To an American familiar with the terminology
and process of our legal system, which is based on English common law, civil law systems can be unfamiliar
and confusing. Even though England had many profound cultural ties to the rest of Europe in the Middle
Ages, its legal tradition developed differently from that
of the continent for a number of historical reasons, and
one of the most fundamental ways in which they diverged was in the establishment of judicial decisions
as the basis of common law and legislative decisions as
the basis of civil law. Before looking at the history, let’s
examine briefly what this means.
Common law is generally uncodified. This
means that there is no comprehensive compilation of
legal rules and statutes. While common law does rely
on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time
through the records of the courts as well as historically
documented in collections of case law known as yearbooks and reports. The precedents to be applied in the
decision of each new case are determined by the presiding judge. As a result, judges have an enormous role
in shaping American and British law. Common law
functions as an adversarial system, a contest between
two opposing parties before a judge who moderates. A
jury of ordinary people without legal training decides
on the facts of the case. The judge then determines the
appropriate sentence based on the jury’s verdict.
Civil Law, in contrast, is codified. Countries
with civil law systems have comprehensive, continuously
updated legal codes that specify all matters capable of
being brought before a court, the applicable procedure,
and the appropriate punishment for each offense. Such
codes distinguish between different categories of law:
substantive law establishes which acts are subject to
criminal or civil prosecution, procedural law establishes
how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty. In a civil law system, the judge’s role is to
establish the facts of the case and to apply the provisions
of the applicable code. Though the judge often brings
the formal charges, investigates the matter, and decides
on the case, he or she works within a framework established by a comprehensive, codified set of laws. The
judge’s decision is consequently less crucial in shaping
civil law than the decisions of legislators and legal scholars who draft and interpret the codes.
The following sections explore the historical
roots of these differences.
