Main differences between the common law, statutory law and civil law.
One of the most difficult aspects of studying law is coping with legal terminology of understanding the different ways in which terms can be used, as for example, the term common law.
The term common law can be difficult to define as it is used in two different ways:
- to describe the system of law which operates in some states whose legal systems are based upon English, i.e. England, Wales, Ireland and Commonwealth countries such as Australia, New Zealand, Canada (without Quebec), the West Indies, Hong Kong, and others[1];
- to distinguish in the term „common law” three main connotations and several historical meanings worth mentioning:
a) common law as opposed to statutory law and regulatory law,
b) common law legal system as opposed to civil law legal system, and
c) common law as opposed to rule of equity.
The first connotation distinguish the authority that promulgated a law. For example, most areas of law in most Anglo-American jurisdictions include „statutory law” enacted by a legislature, „regulatory law” promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, and common law or „case law”, i.e., decisions issued by courts (or quasi-judicial tribunals within agencies).
The interaction between statute and common law also raises many questions. Some statutes are intended to supplement the general law, representing only a marginal intrusion into general law principles. Others are intended as substitutes for general law principles (whether through a form of codification or by creating new rules and principles)[2].
In this context is interesting what relation is between statute law and codified law. It is useful to remember that statute or statutory law is written law (as opposed to oral or customary law) set down by a legislature or other governing authority such as the functioning of government, improve civil order, to codify existing law, or for an individual or company to obtain special treatment.
The term codified law is sometimes used as a synonym for statutory law in general. In a more narrow technical sense, however, this term refers to the statutes that have been organized („codified”) by subject matter, in this narrower sense, some but all statutes are considered „codified”[3].
It should be also added that the specific feature of common law is following: common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action. It should be remember that common law is a law created and refined by judges: a decision in a currently pending legal case depends on decisions in previous cases and effects the law to applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent. The body of the precedent is called „common law” and it binds future decisions[4].
The second connotation explain the fundamental difference between the two systems lies in the fact that most civil law jurisdictions have written codes which are designed to cover every area of law. Common law systems, on the other hand, are based on judge-made law, which is developed on a case by case basis, although (particularly in technical areas) statutes play an increasingly important role.
It is commonly said that a common law and civil law legal traditions share similar social objectives (individualism, liberalism and personal rights) and they have in fact been joined, as already mentioned, in one single family, the Western law family, because of this functional similarity[5].
A major difference between the civil law and common law is, however, that priority in civil law is given to doctrine (including the codifier’s reports) over jurisprudence while the opposite is true in the common law (it can be explained by the role of the legislator in both traditions[6].
It should be also added that the historical roots of two legal systems critically influence the major differences, because the common law traditions sees law as an instrument only to limit state government, whereas according to the civil law tradition, it limits but also empowers state government. If the constitution is seen as an instrument not only to limit state power but also to empower state agencies to change the society, it may have a different, more direct effect upon development process.
It is also crucial to know, what the understanding of the label „rule of law” is. It may have two totally different meanings according to the country tradition:
- it can mean obedience to the existing positive law, as in the civil law system, or
- it may signify, according to the common law tradition, that inalienable rights have to be respected even by the sovereign.
The next major difference between the both legal systems are indicated below, in the table 1.1 and 1.2.
Table 1.1. Comparative analysis of major features of the common law and civil law systems.
Common law |
Civil law |
Develops from case to case |
Law is codification |
Decisions aren’t made until they have to be |
Decisions made in advance |
Reasons from instances to principles |
Reasons from principles to instances |
Faith in precedents |
Faith in logical syllogism |
Skeptical of generalizations |
Delight in the systematic |
Source: Prepared on the ground of a publication: „Common Law and Continental Law – Two Legal Systems” (adapted by V. Butty and based on a text by Professor Th. Fleiner, Director Institute of Federalism, Fribourg, April 22, 2005, pp. 27).
Table 1.2. Comparison of some differences between common law and civil law systems.
Law systems System features |
Common law system |
Civil law systems |
Continuity of legal system |
Evolutionary |
Revolutionary |
Major source of law |
Custom and practice |
Legislative statutes |
Reliance on precedent |
Yes (strong) |
No (weak) |
Judicial role in law-making |
Active and creative |
Passive and technical |
Judicial review of statutes and executive actions |
Yes |
No |
Major decisions stage |
Trial |
Investigation and examination |
Trial format |
Accusatorial/confrontational |
Inquisitorial/collaborative |
Use of argument and debate |
Extensive and fundamental |
Modest and restricted |
Style of legal reasoning |
Inductive |
Deductive |
Trial emphasis on: |
Procedural correctness |
Factual certainty |
Evidentiary rules |
Formal and restrictive (exclusionary rule) |
None (all evidence considered) |
Role of lawyers during trial |
Primary |
Secondary |
Functions of lawyers |
Debate and oppose |
Advise and inform |
Judge’s role during trial |
Referee/umpire |
Director/examiner |
Selection of judges |
Political appointment from practicing lawyers |
Merit advancement from judicial specialists |
Statutes of judges |
Political VIPs |
Mid-level civil servants |
Citizen trial participation |
Juries (grand and petit) |
Members of Judicial Panels |
Appellate review focus |
Procedural |
Procedural and substantive |
Unity of court structure |
Unified court structure |
Diffused court structures (multiple specialized courts) |
Role of legal scholarship |
Secondary and peripheral |
Extensive and influential |
Source: This comparison is prepared on the publications: of Professor William Tetley (McGill University, Canada): „Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified)”;Uniform Law Review, 1999 No.3, pp. 612–618; and Professor Caslaw Pejovic (Kyushu University): „Civil Law and Common Law: Two Different Paths Leading to the Same Goal”; Victoria University of Wellington Review, Vol. 32 (2001), No.3, pp. 818–840. See also the comment to the last article of Luke Nottage (Barrister of the High Court of New Zealand), VUWLR, Vol.32, No.3.
The third connotation distinguish a common law rule from a rule of equity. The last is a body developed by the English courts of chancery to supplement the rigid common law of the time. It is quite important to remember, that before 1873, England had to parallel court systems:
- courts of „law” that could only award money damages and recognized only the legal owner of property, and
- courts of „equity” that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or to stop doing something) and recognized trust of property.
This split propagated to many of the British colonies, including the United States[7]. For most purposes, most jurisdictions, including the U.S. federal system and most states, have merged.