CIVIL LAW & COMMON LAW DECODED

In this article we will look at the two legal systems on which any state is based. We shall come across the historical background of these systems. Finally, we analyse the similarities and differences of the both.

Sources of law

Every country’s legal system has its own sources of law, with greater weight placed on some than the other sources. The following are the most common sources of law:

1. Constitution
2. Legislative enactments or statute
3. Judicial decisions
4. Treaties
5. Other sources

Let us have a look at each of them:

• Constitution: any country’s constitution is a set of fundamental rules that enlists the powers of various organs of the government. The constitution may also set out basic principles like fundamental freedoms or civil rights. In civil systems these are enlisted in the ‘Codes’. A constitution generally overrides any other source and is highly difficult to amend.
• Legislative enactment or Statute: legislation is another source of law, which is considered as a priority over other sources of law except for the constitution. There may be more than one legislative body like central, provincial, state or municipalities. Rules will determine the extent to which and in what areas one legislative body has priority over another. Primary legislation may delegate powers to a particular ministry or regulator to prepare secondary legislation designed to supplement and develop the principles set out in the primary legislation.
• Judicial decisions: In some countries, judicial decisions are authoritative and develop into a source of law known as “case law”. Case law may extend the application of legislation and is deemed to form part of the law. In other jurisdictions, judicial decisions are formally only deemed to interpret the existing law and are not a binding source of law, although in practice they are often treated as authoritative.
• Treaties: A country may be subject to a rules or provisions or a world grouping by becoming a signatory to any treaty. For example, WTO treaties or any other bilateral or multilateral treaty. It is highly difficult for a country to amend the provisions of these independently. Guidelines or say rules of a treaty may also be imported into a law for the betterment of the public at large.
• Other sources: There are a number of other sources of law that may be given greater or lesser weight in a particular country: writings of legal scholars – in civil law jurisdictions, academic writings interpreting the constitution or legislation have considerable influence on decisions of the courts; edicts from a king/ ruler; in the case of certain Islamic countries, “Sharia law” in the form of religious books and edicts from religious groupings.

On the basis of the importance given to Legislation or statutes and judicial decisions, each country has one of the two legal systems- civil and common laws. Let’s have a look at their historical backgrounds.

Historical background

Civil Law

• The term civil law is derived from a Latin term “ius civile”, the law applicable to Roman citizens or ‘cives’. Its origins and model are found to be stupendous compilation of the Roman law commissioned by Emperor Justinian. In common parlance it is also called the Justinian Law.
• The Justinian’s Code of Law provided a sophisticated framework of contracts, rule of procedure, family wills. Roman law was received differently in different countries.
• This compilation later in the eleventh century became the source of the legal instruction in Italy and in the sixteenth century came to be known as Corpus iuris civilis. With the generation of legal scholars superseding, throughout the Europe principles of the ancient Roman law in Corpus iuris civilis were adapted to contemporary needs.
• Medieval scholars of Catholic Church law, or Canon law, were also influenced by Roman law as they compiled existing religious legal sources into their own comprehensive system of law and governance for the Church, an institution central to medieval culture, politics and higher learning.
• By the late middle ages, these two laws, civil and canon, were taught at most universities and formed the basis of a shared body of legal thought common to most of Europe.
• As civil law came into practice throughout Europe, the role of local custom as a source of law became increasingly important—particularly as growing European states sought to unify and organize their individual legal systems.
• Throughout the early modern period, this desire generated scholarly attempts to systematize scattered, disparate legal provisions and local customary laws and bring them into harmony with rational principles of civil law and natural law. With this came the branch of CIVIL LAW.

Common Law

• The Common Law traces its origin back to 1066. English common law emerged from the changing and centralizing powers of the King during the middle ages. After the Norman Conquest in 1066, medieval Kings began to consolidate power and establish new institutions of royal authority and justice.
• This new form of law worked on a system of writs or royal orders each of which specified a specific remedy for a specific wrong.
• This system gradually became highly formalized that the laws, applied by the courts based on this system were often too rigid to achieve adequate justice. In these cases, if ever an appeal had to be made would directly be done to the King.
• Now, this difficulty gave birth to a new kind of courts, known as the courts of equity or the courts of Chancery. These courts were allowed to apply the principles of equity- taking from Roman law or Natural law or both-rather than applying only the Common law principles.
• In the middle ages, common law in England coexisted, as civil law did in other countries, with other systems of law. Church courts applied canon law, urban and rural courts applied local customary law and Chancery and maritime courts applied Roman law.
• Only in the seventeenth century did common law triumph over the other laws, when Parliament established a permanent check on the power of the English king and claimed the right to define the common law and declare other laws subsidiary to it. This evolution of a national legal culture in England was simultaneous to the development of national legal systems in civil law countries during the early modern period.
• With this came the second branch of legal system- the COMMON LAW.

Countries

After looking at the historical background of both the systems, let’s understand their existence in one country each. For the Civil Law we take the case of France and for the Common Law we take into consideration the Britain or say England.

CASE STUDY-I (FRANCE)

• France is a civil law system which means it places a greater emphasis on statutes as found within various codes, instead of case law. The idea of stare decisis– a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case – does not come into play in civil law systems as each case is decided on an individual basis according to how it relates to the codified law and how the judge chooses to interpret that law. Thus, two cases on the same topic could have very different outcomes.
• The Court System:
• The courts in France are also divided into two parts – the judicial courts (those dealing with criminal and civil laws), and the administrative courts. Public law is applied in the administrative courts (tribunaux administratifs). The highest court is the Supreme Court of Appeals. There are 36 courts of appeals, 161 tribunaux de grande instance (high courts), and 307tribunaux d’instance at the lowest level.
• At the top of the administrative courts rests the Council of State (Conseil d’Etat), with 8 courts of appeal (cours administratives d’appel) and 42 tribunaux administratifs.
• There is a third unique aspect of the judiciary in France is the Constitutional Council. This branch oversees review of statutes before they are enacted as well as overseeing national elections and answering questions from citizens regarding the constitutionality of laws. The Conseil constitutionnelis made up of nine members. Three are appointed by the president, three by the head of the National Assembly, and three by the head of the Senate.

CASE STUDY II- INDIA

• The Judiciary is a system of courtswhich interpret and apply the law. The role of the courts is to decide cases by determining the relevant facts and the relevant law, and applying them. The Indian Judiciary administers a common law system in which customs, securities and legislation, all codify the law of the land. It has, in fact, inherited the legacy of the legal system established by the then colonial powerse. Britain or England and the princely states since the mid-19th century, and has partly retained the characteristics of practices from the ancient and medieval times. This judicial system completely follows the doctrine of stare decisis.
• The Court System:
• The Supreme Court of India, also known as the Apex Court, is the top court and the last appellate courtin India and the Chief Justice of India is its top authority. High Courts are the top judicial bodies in the states controlled and managed by Chief Justices of States.
• Below the High Court are District Courts, also known as subordinate courts, controlled and managed by the District & Sessions Judges. The subordinate court system is further classified into two: the civil court of which a Sub-Judge is the head followed by the munsif court at the lower level, and the criminal court headed by Chief Judicial/Metropolitan Magistrate at top and followed by ACJM /ACMM & JM/MM at the lower level.

Differences Between Both Systems

Similarities between Both Systems

Both the systems have the scope of evolution in their respective areas. Both the systems have similar sources of law involved in, they approach regulation and resolve issues in different ways from different perspectives. As common law traditions embrace more administrative law functions (not all things go to court), and as civil traditions confer more precedential power on their courts (and thereby reduce the need for legislation), the lines are becoming blurred between both the systems.

Advantages and Dis-advantages of Common Law

Advantages

• Consistency: The doctrine of precedent works effectively for the most part because it provides stability and consistency in the legal system. Parties involved in trials and hearings can understand that decisions made are based on precedent, rather than personal views or arbitrary judgement. Precedents developed by senior judges in higher courts, lends them authority and experience.
• Resilient: Common law provides us with consistency but it also allows for flexibility and change in law-making. Precedents can be challenged, set aside and replaced by new precedents. The courts provide ample opportunity for common law reforms.
• Particularity: Common law expands on, clarifies and implements legislation. The wording of acts of parliament is often broad and generic, providing general instruction on the law but not how it should work in certain situations. The role of judges in common law is to examine specific facts for each case, interpret relevant legislation and administer the law in line with the arguments presented and the findings.

Disadvantages

• Undemocratic: Legislation, such as Acts of Parliament, is made by democratically elected representatives, whereas common law comes from judges. Judges are not elected by the public, so they cannot be held accountable in the same way Parliament can. Judges may make decisions that seem to be at odds with the views of the electorate. Judges may feel more able to make controversial decisions, possibly the ones that are influenced by their own opinions rather than being entirely neutral.
• Bad Precedents are prevalent: If a judge makes a bad ruling, it still becomes precedent, even if other judges disagree with it. This is a more serious problem if the decision is made by a higher court in the hierarchy, as precedents can only be overruled by a higher court. Even the same court that made the bad ruling is unlikely to want to break their own precedent, although this is technically possible. This means that any bad decisions made are likely to stay in the court system of precedents for quite a while.
• Definition of justice undergoes a change: The situation gets more complicated by precedents set many years before that may well not have been a bad ruling at the time. However, the community’s opinions and views on justice tend to change over the years, so what was once an acceptable outcome to a case now seems unjust. Nevertheless, the precedent will still stand until it is overruled, which can only happen if the case proceeds to a higher court

Advantages and Dis-advantages of Civil Law

Advantages

• Fall back easily: People can easily look upon the legislations and can understand the reasons of their judgements because the laws are entirely codified. They can simply judge as to which law has been applied and which not. In all the system is transparent.
• Proactive role of Judge: the role assigned to the judge is very effective in bringing out true justice to the litigants. It is because the judge has the powers to investigate the matters and ask questions frequently. Thus he can get a full idea of the situation concerned rather than just relying upon the arguments of the lawyers.

Disadvantages

• Judge can turn into arbitrator: the proactive role assigned to the judge is also a threat as it can lead to judge turning an arbitrator and giving directions as per his will.
• Not following the doctrine of stare decisis: this doctrine helps the victims to get justice in similar cases or injuries but the Civil Law system doesn’t follow it. So it is not fixed whether the litigant will get remedy in a similar injury or not.

Conclusion

Though both the systems have their own strengths and weaknesses or say pros and cons but both of them are widely accepted. They have their own importance despite the mandicancies attached to them.

This Article is authored by:- Bhoomika ( MCMDAV-36, Chd.)