Edgar Paltzer: Exploring the Differences between Civil Law and Common Law

Attorney-at-law Edgar Paltzer specialises in providing legal advice on wealth structuring services. This article will look at civil law and common law, exploring the key differences between them.

Civil law and common law are two distinct legal systems that exist in various countries globally. The key differences between them are historical development; emphasis on written law; the role of judges and lawyers; legal terminology and procedure; and the sources of law.

Both systems can have a huge influence on how business is conducted in different jurisdictions, which is why arbitration is so widely used in disputes incorporating a cross-border element. While civil law relies on a codified system, with core principles recorded in referrable documents, common law relies on case law, i.e. the establishment of legal precedents set by judges in previous cases.

Common law jurisdictions practice an adversarial form of conflict resolution while civil jurisdictions rely on an inquisitorial system. Most legal jurisdictions that are francophonie or commonwealth members use a variation of one or the other legal systems. While many Muslim jurisdictions like Iran feature a strong civil law element, countries like South Africa are more mixed, containing elements of both civil law and common law.

Common law principles evolved in the English legal system and are followed in around 60 commonwealth countries today, including most of Canada, as well as in India and the United States. Civil law principles are rooted in French law and are also used in around 60 countries today.

In civil jurisdictions, the writings of legal scholars and statutes created by the legislature are the primary sources of law. In jurisdictions predominantly guided by common law, there is an increased emphasis on judicial decisions made in past cases, which are known as ‘precedents’ or ‘case law’.

In jurisdictions that rely more heavily on common law, legal terminology is usually based on the English language, incorporating terms such as plaintiff, defendant, tort, contract, precedent and negligence. In civil law countries, on the other hand, legal terminology is usually Latin-based, including terms like bona fide, in rem, in personam and res judicata.

In civil law countries, judges typically play a more passive role than common law countries, strictly applying the law as it is contained in statutes and codes to the facts of a particular case. In common law countries, judges generally play a much more active role in the interpretation and application of the law, relying on past decisions and precedents to guide their decision-making.

In civil law countries, lawyers typically provide advice to clients outside of the courtroom in their capacity as legal advisers. In common law jurisdictions, lawyers play a more advocatory role in the court system, representing clients in court and presenting arguments.

There is also a distinction between the role of judges, with judges in civil law countries playing a more passive role and simply applying the law as written in statutes and codes. In common law countries, on the other hand, judges play a more active role in interpreting and applying the law.

In codified legal systems, judges only sit in criminal cases and are virtually never called upon in civil actions. The opinion of the jury need not always be unanimous, although laws on this vary from one jurisdiction to the next. In addition, different jurisdictions also have different systems governing the way evidence is presented in litigation.

In summary, while civil law centres around a more inquisitorial approach, common law is of a more adversarial nature. In lieu of good legal counsel, the differences between jurisdictions can appear minimal, but to those with a deeper understanding of international law, they are actually incredibly nuanced and complex.