It was during the time of Enlightenment, a time of innovation in continental Europe that the thought of codifying legal principles in order to inform all citizen’s of their rights evolved. All great codes of Europe were introduced during that period of time: the Preußisches Allgemeines Landrecht in 1794, the French Code Civil in 1804, the Austrian Allgemeines Bürgerliches Gesetzbuch in 1811, the German Bürgerliches Gesetzbuch in 1900, and the Swiss Zivilgesetzbuch und Obligationenrecht in 1907/11 (Kastendiek, 1999:186). Only on the British Isles the thought of codification of law never emerged (Weber, 1998:186).
The question now is where the exact differences of the systems lie, what the similarities are, what the positive and negative aspects of each system are and what perhaps is to be changed in the future. This essay outlines the current situation of the legal systems, compares them and gives a critical comment on possible ameliorations of both. This is done by point by point enumerating the facts which constitute these differences (through distinctions which occur in the different fields of law), and then critically reviewing what could be improved or changed in both systems.
- Facts about the Legal Systems of Common Law and Civil Law
- Fields of Law
One of the only similarities of Common Law and Civil Law lies in the distinction between Private, Public and Criminal Law.
Private Law rules the relationships between private people, groups or associations considered as legal personalities within a legal system.
Public Law governs legal matters concerning the state and individual’s interaction with the state, including international legal codes such as the Human Rights and international relationships with other nations.
Criminal Law deals with crimes and punishment of criminals, as such with interactions going on between individuals or legal persons. Criminal Law is to be seen as hybrid, as it draws elements from as well Private Law as Public Law (Lyall, 1994:23).
- Sources of Law
In general, sources of law could be classified into three large groups as well in common law as in civil law. The difference is the distinct emphasis on the sources in both systems. They could broadly be divided into historical sources (like early common law, Roman Law or custom), legal sources (such as the law created by current authorities for rules of law, e.g. in case law), and literary sources (written records of legal rules appearing in statutes or law reports, e.g. the Legal Year Books in the common law context).
As mentioned above there is a different emphasis on the sources in civil and common law: common law practitioners mainly rely on literary and historical sources. Following the concept of precedent the most important fountain of law for them is the jurisprudence and therefore judicial decisions of higher courts in earlier cases.
In civil law the concept of precedence appears only rarely and not in the same way as in common law. Judges use previous decisions only in order to decide in what way the written code applies. Decisions ruled by the European Court of Justice, for instance, are in a way seen as proposals how to handle certain cases but they are in no way binding. What counts in the civil law legal system are codes and statutes containing broad and meaningful legal principles. It is then the task of practitioners to find the right legal principle for a case and interpret it in a way that it applies to the case.
- Equity
Equity was meant to be rather an alternative to the common law than a source of law but it is difficult to fit in anywhere as it is such an extraordinary invention of the common law which does not exist as a source of law in civil law. As mentioned above, the Law of Equity is the system which evolved after the system of the writs had become too complicated. Equity, deriving from the Latin term aequitas, could be defined as a kind of fairness or natural justice. It is the body of rules originally formulated and administered by the Court of Chancery to supplement the rules and procedure of the common law – it has been developed by the Lord Chancellor as a possibility to step in if there is no right or rule in common law, but the reasoning is obvious considering a natural sense of justice and injustice. The three maxims of Equity are: “Equity is equality. Equity looks on as done that which ought to be done. Equity looks to the intention rather than the form.” (Koh, 2003:23). After the Judicature Act 1873, all courts had to apply the principles of Equity whenever necessary (von Bernstorff, 1996:6).
- Custom
The source of custom is a rule that also exists in the civil law legal system
but its impact is in no way as strong as in the common law system.
As a basic definition one could say that custom manifests itself if it is established by long usage. Essential elements of custom in the common law system are that a thing has customised since time immemorial (meaning it exists at least since 1189 A.D.), that it existed uninterrupted since this time and that it is certain for every citizen (Koh, 2003:25).
- Legislation
“Legislation is the creation or amendment of the law by a formal process of enactment which is acknowledged as law-making within a state or an association of states” (Lyall, 1994: 24). In a legal context legislation is to be seen as the formal stages of passing a law in the United Kingdom (First Reading, Second Reading, Committee Stage, Report Stage, Third Reading, The Other House, Royal Assent), exactly speaking the creation of legal rules by government and the implementation of them by parliament. Bills or amendments which passed all the stages are to be seen as principles in every legal context.
As well in common law as in civil law legislation is one of the most important sources of law. All laws enacted by parliament (or the Bundestag in the civil law context) are binding.
- Case Law
The perhaps most striking difference of common law and civil law is the application of case law in the common law (meaning that judges are bound to follow decisions rendered by judges of superior courts according to the concept of precedence), which is never practised in civil law (the only exception being judgements of the Bundesgerichtshof and the European Court of Justice, as mentioned above). Therefore common law principles appear in reported judgements, in civil law mostly in doctrines and codes of many legal books, the most important being the Bürgerliches Gesetzbuch. Hence the rules in common law are much more precise and detailed – statutes appear as long texts including many examples, enumerations and exceptions. In civil law, on the other hand, statutes are codified in very general and abstract short phrases. They should apply for as many cases as possible, whereas common law statutes apply to only a limited set of cases. Although statutory law is important in both civil and common law there is a difference. In common law jurisdictions the rules are to be found in the jurisprudence, in civil law the principles are stated in codes. Statutes complete both of them.
- European Law
Since the accession of the United Kingdom to the European Community on
the 1st January 1973 law enacted by the European Community (later Union) is effective within Britain under the terms of the European Communities Act 1972 (Lyall, 1994:29) and supreme to whatever earlier common law rule. Parliament does not have to ratify European law as it applies automatically (Jones, 2003:171). The positions of the European Community law is unique and had a huge impact on British juridification: from the early 1990s on courts had the power to disapply legislation of the parliament that was incompatible with European Community law (Dawn, 2003:18). There are two different types of European Community law: firstly law that is directly applicable, meaning that it is supreme to common law rules without further legislative intervention, secondly law that is not directly applicable, which requires an Act of Parliament to become effective in common law jurisdiction (Lyall, 1994:29).
The Human Rights Act of 1998 gave a completely new dimension to common law as well as to legislation. Prior to it laws enacted by parliament could not be directly questioned in the United Kingdom. Now this is possible. Therefore the Human Rights Act is to be seen as a “constitutional mile-stone in the United Kingdom legal context” (Koh, 2003:35).
The consequences of the European Community laws as well as the laws of the European Convention on Human Rights for legislation in Great Britain is clear: the courts are able to control legislation enacted by the Westminster Parliament and, if necessary change or invalidate it.
- General Concepts
- The Doctrine of Precedent
In common law one of the main doctrines is the doctrine of precedent which includes the main principle of stare decisis, which implies that low courts are bound by decisions in cases that have been adjudicated by higher courts. This creates an order of priority of sources by “reason of authority” (Koh, 2003:40). There are two types of precedents: binding precedents (a past decision which is binding – the legal point of the earlier case is identical or sufficiently similar to the present one and the decision was rendered by a higher court) or persuasive precedents (which the court may consider but is not bound to follow) (Koh, 2003:43). Sources of persuasive precedent may also be the Judicial Committee of the Privy Council, the European Court of Human Rights or courts of countries which also apply the common law (Koh, 2003:44).
In civil law, on the other hand, stare decisis is unknown, judgements of other judges are considered but neither binding nor persuasive. Hence these judgements only enjoy “authority of reason”(Koh, 2003:41).
- Jurisprudence over Doctrine
In common law priority is given to jurisprudence over doctrine. That means that the judges in the common law legal system have much more power than judges in civil law. Common law judges distinguish cases and so to speak write the law themselves, in civil law the judges are only accountable for applying the law correctly. They search for the doctrines which could possibly apply to the case (which is not always so easy, because they are written in such an abstract way) or seem to be nearest to the case, whilst common law judges, if necessary, have the power to create a “new law” themselves if there is no similar case to refer to. That implies that in common law, jurisprudence is the core of the law, if judges do not decide cases with prudence, injustice would be the result. In civil law the given priority is to doctrine over jurisprudence.
That is, in civil law the arrangement of the doctrines regards Montesquieu’s
theory of the separation of powers which implies that the only function of the courts is to apply the law, not to re-write it as it is actually practiced in common law. The common law is objectively disobeying the theory as judges do not only apply but also create the law.
- The Courts
The structure of the court system of both systems is also quite different. At this point it has to be mentioned that the hierarchy of the courts is not identical in all countries which apply to the common law – there are in fact slight differences from the structure in Great Britain to Scotland and Northern Ireland. In the common law system of Great Britain the adjustment of courts could be seen as a kind of triangle on top of which is the House of Lords which is the supreme court before all cases which could not be decided in a previous instance end up. Generally at common law there is a strict separation between criminal and civil cases which both have their own hierarchy of courts shown in the figure below (Kingdom 1999:609).
House of Lords
Court of Appeal
(Civil Division --- Criminal Division)
High Court
(Chancery Division --- Family Division --- Queen’s Bench Division)
County Courts Crown Court
Magistrate’s Court
In the civil law system, on the other hand there are basically two or more distinct columns with no link to one another. That means that there are many different hierarchies of courts, each having its own supreme court (Brockhaus:Bd.8,352).
The proceedings before court are quite similar in both systems, although there are two striking differences. Firstly, in common law, the judge is to be seen as an impartial arbiter who is not involved in the process of, for instance questioning witnesses. In civil law, that judge is in fact impartial, but he actively steps in if he or she has any questions to the witnesses. In civil law there is also a lot of writing to the judge included before the trial actually begins, which is not the case in common law. Secondly, the use of juries, which is quite common in common law is not possible in civil law.
The judgements themselves are also written in distinct ways. Common law judgements are longer, more precise, and include a distinction of previous cases as well as a rule relevant to the new facts. They do not have to be read against a case law background, they stand for themselves. Civil law judgements are much shorter, much more formalistic and abstract. They are separated into two parts, the motifs (reasons) and the dispositif (order). That is because civil law judges are specially trained to read and write in such a formalistic way while common law judges are appointed from a set of practising lawyers and barristers (Koh, 2003:14).
- The Legal Profession
- Solicitors
A next point in comparing the two legal system would be the organisation of the legal profession, to be precise: the lawyers.
In civil law a person with the intention to become a lawyer has to join a university, study law and then could either become a lawyer, or if he did well, a judge. If he chose to be a lawyer his main task will be advocacy. Preparing a case for court will mean to him to find legal principles, which apply to the case. In doing that the lawyer has to consider the intention of the legislator and read the text so to speak against the legal background of the whole legislation. He or she has to trace the history of the doctrine, has to find the legal principle and has to explain the effect of the rule, as it is written concise without examples or definitions and therefore not understandable by everybody (Koh, 2003:15).
In common law the legal profession is split: there are solicitors and barristers. Solicitors mainly deal with clients and prepare the cases. Barristers mostly do the advocacy work and are not directly accessible by the public.
Solicitors do not have to study law at university, that is, if one does not do a Law Degree LL.B then one has to take the so-called Common Professional Examination (CPE). After that one has to do a one-year Legal Practice Course (LPC) at the end of which stands an examination. Having passed the LPC a student must obtain a training contract with a firm of solicitors and afterwards complete a professional skills course. The student now will be admitted as a solicitor by the Law Society, the governing society of all solicitors. Solicitors regularly work in private practice or solicitor’s firms doing a variety of things including contracts, wills, leases and most importantly conveyancing. In contrast to barristers they could be directly accessed by clients. During actual trials in court they only instruct the barrister about the facts of the case. It was only recently through the Courts and Legal Services Act 1990 and the Access to Justice Act 1990 that solicitors got the admittance to be heard before higher courts (given they completed special training) (Koh, 2003:87).
- Barristers
The training of a barristers is quite similar to the solicitor’s one – they do
have to do a law degree or another one together with the Common Professional Examination. After that they have to do the Bar Vocational Course and pass the examination at the end of it. Additionally they have to attend a number of dinners at one of the four Inns of Court in London (Lincoln’s Inn, Inner Temple, Middle Temple, Gray’s Inn). After that they are called to the Bar as official barristers by the Bar Council, the governing body for barristers. Barristers are self-employed and normally practice from chambers with other barristers. They must be briefed by a solicitor to present a case before court. The majority of barristers focuses on advocacy work and have right of audience in all courts. After being qualified for at least ten years a barrister may apply to take silk and therefore become a Queen’s Counsel (appointed by the Lord Chancellor) (Koh, 2003:88).
Although there have been several attempts to fuse the professions of solicitor and barrister, one of the most important being the proposal of Margaret Thatcher and Lord Chancellor Mackay in the 1990s is has not yet been done, mainly because of the power of the Bar which managed to put down all suggestions of fusion (Koh, 2003: 89).
- Judges and other assistants of the courts
Civil law judges have a slightly different task (as mentioned above) than common law judges and also undergo a different training. They usually start practising in lower courts directly after having successfully completed the centrally set examinations.
In the common law legal system the judges are elected from the set of practising barristers. When appointed they have to complete short residential course and sometimes take part in additional training (as for instance when the Human Rights Act was implemented). There are superior and inferior judges, superior being the Law Lords, the Lords Justices of Appeal and the High Court Judges. They are appointed by the Queen (on advice of the Prime Minister). Inferior judges are the District Judges, Recorders and Circuit Judges who are appointed by the Lord Chancellor and can also be dismissed by him. Although judges of superior courts have the privileges of the security of tenure and very high salaries in order to protect them against pressure from other branches the contradiction against Montesquieu’s theory of the separation of powers is obvious (Dawn 2003:333).
There is another fact to be mentioned about the common law system: in lower courts, especially Magistrate’s Courts there are so-called JPs, Justices of the Peace. They are only employed part-time and mostly work for free. As they are not trained judges their task is only to decide if a case they hear in Magistrate’s Court is serious enough to be passed to a Crown Court. Although they normally deal only with minor crimes they have the power to imprison the accused for up to six months.
- Critical Comment
As a conclusion one can say that the goals of both legal systems are the same: both want to provide their nation with a legal system to maintain the social order by codifying rules which forbid, allow or tolerate certain behaviour of all citizens of the nation.
- Administrational Matters
Although the common law system is in a way more open to the introduction of new principles and change of existing rules in order to adapt the law to the needs of a developing society which is constantly in an evolutionary process it may at times be slow. Principles can only be changed if a case concerning this principle comes before court, judges are often reluctant to produce an original precedent not knowing what the consequences to the whole of law are, and hence, the new rules are judge-made, the system is in constant antagonism with Montesquieu’s theory of the separation of powers.
The civil law system, on the other hand is kind of fixed. Principles are frozen into the courts, there is often rigid doctrine imposed on the courts. The system is in a way closed, there are general principles for every possible situation. Although the government is needed to change a law the civil law does not know any reluctance, if changes are needed.
As well case law as the use of large amounts of texts of law have their
advantages and disadvantages. Case law produces a vast and complex heap of “Legal Reports”, “Yearbooks”, “Weekly Law Reports”, “All England Law Reports” etc.. Although the positive impact of the Internet (special search engines for British lawyers for instance) is on the increase, it might be difficult to always find the adequate previous case for the topical case. It is difficult for non-legal professionals to find a way through all these cases for themselves, which means that whenever one has a question concerning law one has to hire a solicitor to find out about a possible outcome of a case.
The legal codes and statutes in civil law are not really a good alternative. As the principles are written in such a general, abstract way they are not easier to understand whatsoever. To find out about a legal principle in a paragraph in the Bürgerliches Gesetzbuch, for example, and then to find the corresponding paragraphs which constitute a set of rules is a science in itself.
The stare decisis is a principle which could be considered of probably being a positive factor also for the civil law system. But it would actually be quite hard to implement as there is no case-law procedure in civil law which means that not every judgement (only the ones of higher courts) are put on record and published.
The positive aspects of the common law court system outweigh the civil law’s system at first sight. It is more concise, one could easily understand which case is heard before which court and how the hierarchy works. The civil law system in these concerns is much harder to understand and one never knows in which instance and which court a case is tried.
The common law system of the judge as well as the lawyers asking questions during a trial is preferable. He or she is the one who has to find a fair decision and such a fair decision could only be produced if the judge can question the evidence given by witnesses, defendants or other persons involved.
The jury system, which could only be used in common law is another benefit. Although the use of a jury actually has many disadvantages, the positive aspects are much more in count and the possibility of using a jury should also be given in the civil law system.
The way common law judgements are written is preferable. They are much easier to understand in contrast to the civil law judgements with their general and abstract reasoning.
The splitting of the legal profession in the common law system is unnecessary. Although in common law one is used to the system and the time-honoured Law Society and Bar Council are heavily contradicting, the division of the professions is not of any assistance. In contrary, it causes lots of needless expenditures to clients, having to pay for both solicitor and barrister and makes the system unnecessarily complicated. Although there have been some reforms by means of the Courts and Legal Services Act 1990 and the Access to Justice Act 1990, which, for example give solicitors right of audience at all courts (if they fulfil the requirements) the system is still unsatisfying. The Office of Fair Trading (OFT) has recently asked the government to put an end to the separation and hopefully parliament would consider that.
- And Montesquieu…?
If one takes a closer sight at the common law system one could easily see that there is a contradiction between the organisation of the hierarchy and Montesquieu’s theory of the separation of powers. The House of Lords, being a part of the parliament is at the same time the highest court and part of the legislative. The Lord Chancellor is Minister of Justice as well as he presides over the House of Lords. Following Montesquieu’s theory however implies that legislative and judiciary should be strictly separated in order to provide the legal system with impartial judges who are independent of other branches. Although this is obviously necessary to grant fair and lawful decisions by the courts to the individual this elementary separation is not given in the British system (Dawn 2003:332). Only recently a discussion on whether the lacking separation of powers is contradicting Article 6 of the European Convention on Human Rights, which requires access to an independent and impartial tribunal, has evolved (Dawn 2003:331). It is to be decided soon how the British Government will handle this problem of a “pressure towards a constitution based on law rather than politics” (Dawn 2003:331) in the future. Furthermore there was a wide reaching reorganisation of the judiciary and its connection to the Lord Chancellor achieved by Tony Blair in 2003 concerning the separation of the judiciary and parliament and the independence of the judiciary (Jones and Kavanagh 2003:167).
The procedure, of the appointment of judges again, is a massive disregard of Montesquieu’s theory of separation of powers in the common law legal system. If members of the legislative have the power to appoint or remove judges, the independence of the judiciary as well as the separation of power is not guaranteed. There actually are many critical voices against this system, complaining about the “old boy network” (many judges from the same set of barristers) and the under-representation of solicitors, women and ethnic minorities in the judiciary. It is obvious that the system applied in civil law is better and although one might argue that everyone who makes it to get a law degree can become a judge, but actually that is not the case – only the students with the most excellent grades are accepted to become members of the judiciary.
- Summary
Finally one has to acknowledge that a complete comparison of the two
legal systems is a task literally impossible to do within the range of a short essay. The complexity of the whole topic is huge and to exploit and compare all aspects of the two systems nearly impossible. Additionally, it is not possible to judge a legal system and come to a conclusion which is completely true. One cannot decide which one is the better one, both have advantages and disadvantages. However, this essay tried to give a slight insight into the facts, the procedures and the difficulties of both systems of common and civil law but in no way claims completeness. The proposed suggestions for improvement of both systems are of a personal kind and should only be seen as helpful suggestions.
References
Primary Literature
Koh, Kevin In-Chuen. Lecture Notes of the Lecture “Introduction to Common
Law”, Winter Semester 2003/04, Institute for Economic Law, Martin
Luther-University Halle/Saale.
Sieper, Roswitha (1989). The Student’s Companion to Britain – British History,
Geography, Life, Institutions, Arts and Thought. 7th ed. München: Hueber.
Budge, Ian, Ivor Crewe, David McKay, and Ken Newton (2004). The New British
Politics. 3rd ed. London: Pearson Longman.
Kastendiek, Hans, Karl Rohe, and Angelika Volle, eds. (1998). Großbritannien –
Geschichte, Politik, Wirtschaft, Gesellschaft. 2nd ed. Frankfurt/Main:
Campus.
Lyall, Francis (1994). An Introduction to British Law. Baden-Baden: Nomos.
Coxall, Bill, Lynton Robins, and Robert Leach (2003). Contemporary British
Politics. 4th ed. New York: Palgrave Macmillan.
Kingdom, John (1999). Government and Politics in Britain. 2nd ed. Cambridge:
Polity Press.
Brockhaus Enzyklopädie (1989). Brockhaus Enzyklopädie, Band 8. 19th ed.
Mannheim: F.A. Brockhaus.
Secondary Literature
Bernstorff, Dr. Christoph Graf von (1996). Einführung in das englische Recht.
München: C.H. Beck.
O’Driscoll, James (2002). Britain – the Country and its People: An Introduction
for Learners of English. 9th ed. Oxford: Oxford University Press.
Jones, Bill, and Dennis Kavanagh (2003). British Politics Today. 7th ed.
Manchester: Manchester University Press.
Dawn, Oliver (2003). Constitutional Reform in the UK. Oxford: Oxford
University Press.
Websites
Tetley, William. “Mixed jurisdictions: common law vs. civil law (codified and
uncodified)” (01.12.1999), International Institute for the Unification of
Private Law.
URL:
(22.04.2004)
Tyler, Samuel. “Common Law or [Roman] Civil Law: Introduction of the civil
law and the common law” (22.04.2004), Sympathetic Vibratory Physics.
URL: (22.04.2004)
The Columbia Encycopedia. “Civil Law” (22.04.2004), Columbia University
Press. URL: (22.04.2004)
Wikipedia. “Common Law”, (31.12.2002), Wikipedia. URL: (22.04.2004)
Wikipedia. “Civil Law”, (31.12.2002), Wikipedia. URL: (22.04.2004)
“Should the two legal professions be merged into one common profession?”, (25.11.2003), Academic Database.
URL: academicdb.com/library?d=1;page=record;link=1089 (22.04.2004)
“English legal system: Is the division of the legal profession into solicitors and
barristers still” (02.03.2004), Academic Database.
URL: academicdb.com/library?d=1;page=record;link=604 (22.04.2004)
Council of Europe Portal. “European Convention on Human Rights, Article 6”,
(22.04.2004), Council of Europe.
URL: (22.04.2004)
Article 6 – Right to a fair trial: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. […] (Council of Europe 2004:Article 6)