Civil Law and Common Law: What they are and which are the differencies

Civil law and common law are two very different models of legal system both in the division of functions between the powers of the State and in the application of laws.

The Civil Law model first spread in continental Europe and then in the rest of the world, as in Quebec, Japan, China and most of the former European colonies. It is also adopted in Italy where it is called “continental law” or “Roman-Germanic law”. It is a roman-based model that is codified. It means that is based on a set of legal codes in written form that regulate the fundamental regulatory principles of a country. Therefore, this model recognizes the prominent role of the law in guiding the decisions of the judiciary, which must comply with the regulations in force and apply them to the concrete case. In this case, judges have a limited power because they can just apply the rules following the guidelines of the law to the case at hand.

While the Common Law system is based primarily on jurisprudential law, in which judges play an important decision-making role in the development of rules. Because the common law model was originally developed through custom, in an era where laws were not written down, it was not codified. Therefore, judges made decisions according to judicial precedents. However, common law today is also codified, and is based on the principle known as “stare decisis”, according to which they give great weight to judicial precedent.

Therefore the main difference between Civil Law and Common Law is the fact that the former is a system based on the codes and laws of a country which are the primary source of law while the latter is based on the prevalence of jurisprudential law where the judge has a prominent role in the application of laws.

The Common Law system is a british legal system originated in the early Middle Ages. It is currently in force in the United Kingdom (excluding Scotland), the United States of America (excluding the state of Louisiana), Australia, Canada (excluding the province of Quebec) and Hong Kong.

Common Law in the United States

It should be noted that the American common law is slightly different from the English common law, as there is the presence of a codification, while the English legal system is mainly based on conventional rules, without a written constitution. Moreover, in the United States, the principle of “stare decisis” is adopted in a more “elastic” way: it is considered by judges not so much as a legal rule to be followed in every case, but to be applied for reasons of justice and convenience. Therefore, if there is the need to find a different solution for the next cases, the precedent, can be distinguished, modified or even, eliminated.