Main differences between the common law, statutory law and civil law.

 In International Commercial 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:

  1. 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];
  2. 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.


[1] It should be noted that the United States adopted the common law as it applied in the 13 original colonies at the date of independence. It has since been developed by the States (except Louisiana, which as a former French colony has very different legal system) and by the Federal Courts and Supreme Court.

[2] A. Całus, „Przewodnik po źródłach i podstawowych instytucjach prawa prywatnego (handlowego) w systemach prawnych Europy kontynentalnej, Wlk. Brytanii i USA”, Międzynarodowa Szkoła Menadżerów, Warszawa, 1992, pp. 48–58.

[3] Ibidem, pp. 61–64, and see also: N. Morag-Levine, „Agency statutory interpretation and the rule of common law”, Michigan State Law Review, Vol. 51, Spring 2009, pp. 55–60.

[4] S. Foster, „Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?”, The Georgetown Law Journal, Vol. 96, 2008, pp. 1867–1869.

[5] R. David and J.E.C. Brierley, „Major Legal Systems in the World Today”, (3rd Ed.), Stevens & Sons, London, 1985, at pp. 25–26.

[6] For example, the civil law adopts Montesquieu’s theory of separation of powers whereby the function of the legislator is to legislate, and the function of the courts is to apply the law. Common law, on the other hand, finds in judge-made precedent the core of its law.

[7] As colonies gained independence from Great Britain, most adopted British common law as the basis for their legal systems. For example, following the American Revolution in 1776, one of the first legislative acts undertaken by each of the newly-independent states was to adopt a „reception statute”. A reception statute was a statutory law in a former British colony enacting (i.e. retaining) pre-independence English law, to the extent not explicitly rejected by the legislative body or constitution of the new nation. Some states enacted reception statutes as legislative statutes, while other states received the English common law through provisions of the state’s constitution, and some by court decisions. British traditions such as the monarchy were rejected by the U.S. Constitution, but many British common law traditions such as habeas corpus, jury trials, and various other civil liberties were adopted in the United States. It should be also added, that under the doctrine of reception, if a colonized territory has a pre-existing legal system, the native law would apply (effectively a dorm of indirect rule) until formally superseded by the English law, through Royal Prerogative subjected to the Westminster Parliament. Significant elements of British common law prior to 1776 still remain in effect in many jurisdictions in the United States, because they never been rejected by American courts of legislatures.

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