jury had decided for them. But in 21st century the rule of jury has changed vastly. The common law is marked by a doctrine of the supremacy of law.
There are three highly influential legal traditions in the contemporary world such as civil law, common law and socialist law. The terms of legal tradition implies is not a set of rules of law about contracts, corporations and crimes although such rules will almost always be in some sense’s reflection of that tradition. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into culture perspective. There would appear to be three at least which occupy an uncontested place of prominence like the Romano Germanic family, the common law family and the family of socialist law. Other legal traditions include Muslim law, Hindu law, Jewish law, laws of the Far East and African tribal laws.
Civil law may be defined as that legal tradition which has its origin in Roman law, as codified in the corpus juris civilis of Justinian and developed in continental Europe and around the world. It divided into two streams like the codified Roman law and the uncodified Roman law. It is highly systematized and structured and relies on declarations of broad general principal often ignoring the details.
Common law is the legal tradition which evolved in England from the 11th century onwards. Its principles appear for the most part in reported judgments, usually of the higher courts, in relation to specific fact situations arising in disputes which the courts have adjudicated. Common law is the foundation of private law, not only for England, Wales, and Ireland but also in U. S.state, 9 Canadian provinces and most countries which were first received as colonies of the British Empire.
A major difference between civil law and common law is that priority in civil law is given to doctrine over jurisprudence while the opposite is true in common law. French civil law adopts Montesquiue’s theory of separation of powers and common law finds in judge made precedent the core of its law. The civil law doctrines function is to draw from disorganized means where the common law doctrines function is more modest. The common law authors focuses on fact patterns where the civilest focuses on legal principles. Common law jurisprudence sets out a new specific rules to a new sepcific set of facts and provides the principal source of law where civil law jurisprudence applies general principles and provides a secondary source of law. In common law the core of the law was to deffer one court to another under the doctrine of binding precedent where in civil law general principles are embodied in national codes and statutes. Civil law judgments are written in a more formalistic style and shorter than common law, which is separated into two parts such as the motifs and the dispositif. Civil law judges are specifically trained in special schools but common law judges are appointed from among the ranks of
practitioners without special training. Statutes have same paramountcy in both legal traditions and they differ in their functions. Civil law codes and statutes are concise
while common law are precise. Civil law statutes provide no definition and state principle in broad general phrases while common law statutes provide detailed definitions and each specific rule sets out lengthy enumerations of specific applications or excepti0on. Civil law judge are influenced by Rosseau’s theory that the state is the source of all rights under the social contract while common law judges favour Hobbes theory that the individual agreed to forfeit to the state only certain rights. In common law courtroom practice which may be subject to rigid and technical rules where in civil law rules relating to courtroom practice which are intended to be minimal and uncomplicated. In common law the judiciary possesses an inherent power to adjudicate while the civil law is not. In common law expense and effort of determination of disputes through litigation falls largely on the parties while in civil law it falls on the state.
Now-a-days the common law is moving to civil law day by day. For example restitution is now the new common law science which resembles the civil law principles of quasi-contract found for centuries in Scottis civil law and it developed mainly through the action indebitas assumpsit under implied contract theory. After (Donoghue vs. stevenson) a general duty of care is established which is recognized in civil law. In 1854(Hadley vs. Baxendale ) the civil law introduced a new principle in common law that is the measure of damages arising from the breach is consequential damages and if there is any special circumstances it must be communicated the parties. After the Reform Act 1937 and later sec 35 A Supreme Court Acts 1980 introduced a new common law science that is discretionary powers of the court ot award interests for the debts of sums of money, which is recognized in civil law.
The common law is adversarial and the civil law is inquistorial that’s why the English legal system has changed day by day. There are those that have given us the informed judge. There are those principally to be found in the new civil procedure rules that substantially increase the powers of the judge because it provides various rules and under the CPR the judges can even go so far as to dispose summarily of a case ,if he considers that the claim or defence has “no real prospects of success”. There are those that are intended to keep out of the court as many as possible of the disputes which may prove susceptible to resolution by means other than legislation and it has increased and strengthened device for persuading the parties to solve the matter outside the courts which is called Alternative dispute resolution.