What Is the Difference Between Common Law and Civil Law?
Civil law is different from common law in a number of ways. This type of legal system originated from Roman law, and is still the standard in a number of countries around the world. Civil law countries include Brazil, France, Germany, Spain and Switzerland.
Common law is based on precedent and has been used since before the time when laws were first written down. This system of justice was developed in England and is still being used in Australia, most of Canada, England, India and the United States, except for the state of Louisiana. Judges, who are asked to interpret written law, make decisions, which are then used as precedents for future cases. The Canadian province of Quebec and Louisiana in the United States operate under the civil law system.
In jurisdictions where civil law is the method of justice that is being used, judges enforce the law strictly as it is written. People who are subject to civil law understand that when it comes to meting out punishments, a judge in a case will look at the legislation to determine the appropriate sentence or fine.
Under a civil law system, cases are decided by judges who are specially trained for their role. In common law countries, a person who is interested in becoming a judge must first go through the process of getting the education required to become a lawyer. The next step in the process is to practice for a number of years before being elected or appointed to the bench.
In a country where common law is the method used, lawyers are in charge of presenting the case before the judge in an adversarial system. Each side takes a position and presents evidence to support it. Under this system, the judge generally remains silent unless responding to an objection made by legal counsel. Civil law judges take on an inquisitional role, and ask the parties questions to understand and rule on the legal issues involved.
When lawyers are preparing for trial in a common law country, they look to legal precedents to determine how the court may rule on a certain type of case. The judge may want to receive submissions of case law to support each side's position. Under a civil law system, the lawyers and the judge will refer to the written law, or code, for guidance. The code includes laws relating to property, commercial enterprises and individuals.
Written by Jodee Redmond
