Moreover, the civil law (private international law) is codified to a body of general abstract principles, which control the exercise of judicial discretion. Disputes arisen in civil courts are settled by reference to a written legal code through legislation, edicts. But, like common law, civil law is also based on the precedents created by judicial decisions overtime. The tendency in civil law is to create a unified legal system by working out with maximum precision the conclusions to be drawn from basic principles. Pre-judgement interests are recoverable as of rights in civil law. On the contrary, pre-judgement interest has been awarded only in relatively recent times in common law. Thus the traditional civil law decisions state the applicable provisions from the code or from a relevant statute and the judgement is based upon those provisions. Also, civil law being substantive instead of adjectival, puts more emphasis on its choice of law rules, while common law being essentially procedural, and focuses on the rules of jurisdiction.
The countries on the continent of Europe, the countries that were former colonies of such continental powers (e.g. the Latin American countries) and other countries that have recently adopted Western legal system (e.g. Japan) follow civil law. Modern countries that do not adhere to the civil law (this includes Great Britain and all of the United States except Louisiana); apply the system of common law as the prevailing jurisdiction. In terms of general usage, civil law also means, the rules that govern private legal affairs. In this sense it contrasts with criminal law, and to a lesser extent public law.
Following from this, if we contrast common law with civil law even further, the differences between both traditions can be acknowledged. Whereas common law refers to the substantive law and procedural rules that have been created by the judiciary through the decisions in the case, they have pronounced a judgement upon. Civil law is totally opposite from it, in the sense that it is private law and involves the legal relationships between individual citizens or organisations. It has the legal mechanism, through which individuals can assert claims against others and have those rights adjudicated and enforced. It also differs in the courts ‘fact finding’ approach, in the sense that it is more likely than in common law traditions, to play the role for asking specific factual information from the parties.
A further difference in which both traditions approach the interpretation of contracts, is that, common law dictates that contractual promises be interpreted according to the reasonable expectation of the promise, civil law on the other hand, is based on the autonomy of free will and requires actual consent, but presumptions of fact are available to the trial judge. Thus, the purpose behind civil law is to settle disputes between individuals or organisations and to seek damages for the breach of law concerned and those that are dissatisfied with the judgement can appeal to a superior court. But, in common law, a set of principles, is applied to the whole country. Much of the areas of common law are criminal, negligence, nuisance and economic tort, which are not only for private citizens but for the whole.
Furthermore, looking at the role of civil law, the state is to establish a general framework of legal rules, and to also provide the legal institutions for operating and enforcing these rights. But unlike common law, in order for the civil law to apply to cases, it is strictly a matter for the individuals to bring a case against the defendant (e.g. breach of contract) with the funding of legal aid possibly. This is different from common law; take for examples the principles of criminal law, which is based on common law. The prosecution are generally brought in the name of the Crown, to secure a conviction. Cases are cited as ‘R v Smith or R v Smith Ltd which denotes the king or Queen who prosecute for the whole of the nations. Such a distinction brings out the divided difference between the two traditions, since in theory, crimes are worse than civil wrongs and therefore cannot be left to individual victims to prosecute, but rather cases must be brought by the whole community against the suspect. Furthermore, civil law tends to be also obligated to satisfy international obligations.
The type of judgement differs between common and civil law is that the latter, seeks to provide remedies for the innocent parties, which is very different from common law, where the end result will either be a fine or retribution depending on the type of law concerned.
But are both legal systems distinct from each other? The grounds of civil law, has been argued to have been shaped by the common law. The important principles such as contract, trust, negligence and property, have all been the creation of the courts. Thus, it can be said that a great deal of the civil law is taken up with application of fundamental common law principles. However, in response of social pressure, the common law principles have either been supplemented or even replaced by a great deal of legislation, whereby Parliament has acted in the interest of protecting the weaker party.
Thus this is when civil law plays a significant role, both in economic life, and in the regulation of other social relationships, by seeking to ensure that bargains are kept, promises are protected and that compensation for the consequences of legal unacceptable behaviour may be awarded to those who have been affected. Although the rules in civil law are not to punish the offender, in the sense used in the context of criminal law, it is nevertheless the case that rules of civil law indicate that for example a contract cannot be breached with impunity, nor can a individual act negligently in relation to another.
In this context, both traditions send the message that certain types of behaviour are not acceptable and therefore judgements on both traditions could be argued to have the same motive, namely justice for the innocent. In addition, before the case of Donoghue v Stevenson, there was no general duty of care at common law. Civil law opposes such a view and recognised the general obligations not to act unreasonably in situations not governed by contract. Such differences show that both traditions go at different extremes about with there problems, though a trespasser may be tried in both civil and common law courts Hence if a person broke into a property, then he could be convicted of theft as well as trespass.
In conclusion, civil and common law developed similar rules to limit the scope of the traditional method when its strict application led to undesirable results. The civil law notions of fraud are similar to the common law rule of ‘no evasion of the law.’ The same is with civil laws ‘international public order’ and common law’s ‘public order.’ Therefore common law system requires a mechanism for the development of the principles it sustains. On the other hand, civil law decisions do not develop without the existence of courts (e.g. cases are referred to when drafting out a Bill). But an important issue to remember is that, although the law-making functions of the Parliament and other institutions are now far more predominant than they were a century ago, nevertheless, modern statute law is still set in the common law context. Hence, although in practice, both traditions may be different (having their own way of problem solving); it remains a moot point that in theory common law and civil law are quite consistent with each other.
References
Gary Slapper. Spring 2001. Volume 35. Student Law Review. English legal system. p 29-30
Section 9(1) of the Theft Act 1968-‘burglary.’
Archbold Criminal Pleading Evidence & Practice. 37th Edition. Para, 1505 (Trespass).
Regina v Collins [1971] Crim LR
Article 6 of the European Convention on Humans Rights and Human Rights Act 1998
Bibliography.
Martin Partington. Introduction to The English Legal System. (Oxford 2000)
Watson. The Making of the Civil law. Harvard UP.
Gary Slapper & David Kelly. The English Legal System. 5th Edition. (Cavendish
Publishing 2001)
Honore, Tony. An Anglo-Swedish Comparative Study (Abingdon: Professional, 1981).
Crownie F & A Bradney. The English Legal System in Context.
Zander M. Cases and Materials on the English Legal System.
See Gary Slapper’s Article on ‘The Judiciary, victims, courts, efficiency, publicly funded law, and the Auld Report. Student Law Review 2002.Volume 35. p30
see Pyper (1998) and Griffith 1991-British Politics in Focus. Roy Bentley.
Contrast with Civil law. The case is in the name of the claimant and defendant.
Latin Rex and Regina versus
Ibid. Gary Slapper. Student law review, p30
Article 6 of the European Convention on Humans Rights, incorporated into the Human Rights Act 1998- provides that people should have a right to a fair trial for the determination of civil matters.
Honore, Tony, The quest for security: employees, tenants, wives (London: Stevens & Sons, 1982); Anderman, Steve et al. (eds), Law and the weaker party: An Anglo-Swedish Comparative Study (Abingdon: Professional, 1981).
The importance of these provisions is that it is extremely hard to find investments into a country where there can be no guarantee that contracts will be enforced or property rights upheld.
Since then, ‘Obligations’ have been taught in common law schools and books (e.g. Tettenborn).
See Regina v Collins [1971] Crim LR. See Judgement by Edmund Davies and Stephenson L.JJ. and Boreham J.
see s.9(1) of the Theft Act
see Archbold Criminal Pleading Evidence & Practice, 37th ed. (1969), Para. 1505-Intentinal, reckless or negligent entry into property constitutes a trespass.
