Common Law vs. Civil Law: An Introduction to the Different Legal Systems
Broadly speaking, a common law syste.m is based on the concept of judicial precedent. Judges take an active role in shaping the law here, since the decisions a court makes are then used as precedent for futures cases. Whilst common law systems have laws that are created by legislators, it is up to judges to rely on precedents set by previous courts to interpret those laws and apply them to individual cases.
In certain common law countries, courts (such as the Supreme Court of the United States) have the ability to strike down laws that were passed by legislators if those laws are deemed unconstitutional in violation of federal law. By contrast, in the United Kingdom, the concept of parliamentary sovereignty means that legislation can only be amended or revoked by Parliament, not the courts.
Civil law systems, on the other hand, place much less emphasis on precedent than they do on the codification of the law. Civil law systems rely on written statutes and other legal codes that are constantly updated and which establish legal procedures, punishments, and what can and cannot be brought before a court.
In a civil law system, a judge merely establishes the facts of a case and applies remedies found in the codified law. As a result, lawmakers, scholars, and legal experts hold much more influence over how the legal system is administered than judges.
How We Got Here
Both civil law and common law systems originated in Europe. Prior to 1066 and the Norman Conquest, the United Kingdom had no coherent legal system, and was instead made up of customs that applied to different parts of the country. William the Conqueror was the first King to unite these accumulated customs and traditions and create courts and a legal system common to the whole country, hence the term “common law”.
The common law system developed alongside the courts of equity which devised remedies to legal issues based on fairness and equality to counter the sometimes rigid common law. The decisions of these courts were recorded and published, and it therefore became possible for the judiciary to look at previous decisions (precedents) and apply them to the case at hand.
Judicial precedent therefore works on the basis of the principle of stare decisis, a Latin phrase which means “let the decision stand”. The common law now has certain rules. For example, only certain parts of a judgment becoming binding precedent, and only if handed down by a superior court.
By contrast, civil law can be traced back to Roman law. The use of a codified system here allows for primary sources of law to be recorded in legal codes, which are intended to cover the law in a particular area.
The legal system of the United Kingdom is classified as a common law system, similar to the U.S., although there are many codified laws in the form of statutes. This is in contrast to our European neighbours such as France, Germany, Italy, and Spain, where the legal systems are entirely codified and therefore operate on a civil law basis.
Taking the QLTS as a Civil-Qualified Lawyer
Although there are fundamental differences between the two systems of justice, both common law and civil law have become global legal traditions that continue to effectively shape the justice systems of hundreds of countries. Both affect how business is conducted within a specific jurisdiction. Both affect how international business is carried out.
Because common law and civil law are basic concepts for justice systems around the world, they are essential to understand for anyone who wants to learn more about legal tradition, either at home or abroad, and who may be on a path to dual qualification. The biggest challenge for a lawyer coming from a civil law background who wishes to qualify in England and Wales is understanding the concept of judicial precedent and judge-made law itself. This is tested in the MCT portion of the QLTS exam, as a fundamental part of the English Legal System. Similarly, civil law jurisdictions do not have the concept of equitable principles or trust law, so these are areas where civil law-qualified lawyers might struggle.
French employment law attorney Crésence Agbattou knows this struggle all too well. “At first it was quite challenging to wrap my head around differing concepts, such as the rule of precedent, and especially the lack of a Constitution as the basis of the law,” she said. “QLTS Prep by BARBRI helped me master common law rules, and the MCT, by having me commit to practise exercises on a daily basis. Once I overcame the early learning challenges, I found it very interesting to navigate between civil law and common law to improve my work expertise.”