I have read a little bit about this, but the difference went over my head. What is the practical difference between common and civil law? I am under the impression that things need to be spelled out more in civil law.
Thanks,
Rob
Common law is non-statutory law, it exists in both criminal and civil law.
For example in England and Wales people accused of murder are tried under common law, because there is (or at least was, historically) no Act of Parliament that says it is illegal to murder someone.
Usually common law exists as precedent, though not completely as new precedents can be created. For example again in England and Wales the crime of “Outraging Public Decency” is a relatively recent invention under Common Law.
Common law sprang from the applied customs of the Anglo-Saxon peoples, specifically as they developed in England over the centuries. Thus, the concept behind common law is that the law exists even in the absence of statutes; indeed, statutes are mere intrusions on the already extant body of law that exists to resolve societies disputes.
Civil law sprang from the codification of the laws of the Roman Empire in the reign of the Emperor Justinian. Basically, he rounded up all the various legislative acts that had been passed over the years, gave them an organizational structure, and thus established them as the controlling law for the Empire. Later countries in the area used these principles as a basis for their approach to law. In such countries, statutes are the primary source of law; customs are used only as needed to fill in the interstices between the law as defined by legislation/decree.
So, for example:
In a common law country, there is a crime known as burglary. We can define it, establish the proof requirements for a conviction, etc., all without a single statute establishing that it is a crime. It is a crime because our customs as an English people tell us that burglary is a bad thing, and we punish it accordingly.
In a civil law country, there will be a statute that has established that burglary is a crime. In the absence of such statute, burglary may be a crime, but usually because of reference to some older set of statutes defining it (if need be, by referring back to the code of Justinian). The statute’s provisions will be expanded as needed to fill in the blank areas as they arise (what happens when you leave the door open, or what happens if the felony occurs outside the domicile?).
Now obviously many common law countries have long since codified the crap out of their legislation (America a classic example). But even so, the interpretation of a statute stays narrow, because we don’t need to expand it, since there already exists a “law” to handle the in-between places.
There are other, practical effects, but that’s the basic gist of it. 
Is there a non-codified example? As you point out, just about any obvious crime I can think of has been codified. What would be an example of someone being charged with a common-law crime?
I started this thread after I was reminded about a story in the Atlantic about problems the Coalition Provisional Authority was having in Iraq. They used the case if Iraqi traffic laws and there were issues because you had a bunch of Americans trying to make up a code in a civil law country. Care to comment?
Thanks,
Rob
Common law crimes are often very similar to codified ones, but often with certain elements done away with by statute. For example, at common law burglary had to be on another’s dwelling and had to be committed at night, and burning your own house down wasn’t arson (it was “houseburning,” a misdemeanor). Common law rape required that the victim not be the defendant’s wife.
Easy solution - just use lawyers from Tulane.
Actually, I may have the details wrong. The friction may have been over the fact that the US lawyers wanted to base the new code on common law. The article was about the lack of meeting of the minds, IIRC.
Thanks,
Rob
A really good example is the Writ of Habeas Corpus, which has been in the news n a couple of different contexts the past few years. It’s mentioned in the U.S. Constitution, and probably in Codes of Civil Law and Procedure hither and yon – but only in the context that it shall not be abridged except in specific circumstances, and probably how to apply for it, which statutory courts may issue it, etc. The writ itself is a part of the common law, and its availabilty, to bring the detained before the court so it can decide if there is a just cause for his detention, or else release him, predates almost all English statutes, and definitely all statute law anywhere else in the English-law-derived world, including the U.S., Canada, Australia, etc.
Like a contract, including the tacit one to buy and sell in a store. What constitutes a valid contract is probably spelled out in excruciating detail in books of statute law and commentary – but the basic concept: if you have a store selling tomatoes for $1, I walk in, pick up two tomatoes, hand you $2 (plus any tax you’re expected to collect), and walk out – neither of us has any complaint; the elements of a valid contract were present. And that basic concept predates statute law; it’s a part of the common law.
The other half, of civil vs. criminal law, is the one being given short shrift. Civil law is agreements and conflicts between private parites, not involving the state. If I sue you, it’s a civil lawsuit. The fact I like your tomatoes so much I contract with you to deliver seven tomatoes to my home every Monday, and you agree to do so on payment of a fee-- that’s a civil contract. Contrariwise, if Smith holds up your store and steals your proceeds, he’s committed a criminal act, and the state, not you personally, is the one who brings legal action against him, to imprison him. (You can sue for the money back, too, a civil action, though more often it’s restored as a part of the criminal case.) Not all criminal law cases are penal-law crime stuff – typical driving offense cases are State vs. Driver criminal-lawcases. Increasingly, prosecutions for things like pollution, fraudulent professional practice, etc., are handled as criminal matters also.
OK, but how is it different under a lex justinia (or whatever it’s called) system?
I don’t understand what you are getting at here. Can you explain further?
Thanks for your help,
Rob
Contempt of court. In my jurisdiction (Canada), the crime of “contempt of court” is not written down anywhere. You won’t find it in the Criminal Code, nor will you find it in any province’s legislation. But it exists, and arose from the common law.
I see that we’re also getting confused about “civil law.” Let’s see if we can clear that up. As you know, “common law” is the system of law used in countries that trace their legal systems from English common law–the most notable hallmark of which seems to be the use of precedent in deciding cases. Examples of common law jurisdictions include the United States, the UK, Canada, and Australia. “Civil law,” as has been said, tends to be codified instead of relying on precedent (examples of civil law jurisdictions include France, Quebec, and Germany). This is a rough division; certainly you find many codes and statutes in common law jurisdictions, and I’d guess that some judges in civil law jurisdictions do pay some attention to precedent if they want to. And there are many other distinctions between the two systems as well (common law adversarial system vs. civil law inquisitorial system, for example).
But “civil law” is also the name often given to private law in a common law jurisdiction; or that between two parties, neither of whom is the government. So if Smith sues Jones for damage sustained to Smith’s car in an accident Jones caused, Smith launches a “civil proceeding” in the “civil courts.” Similarly, breach of contract would be a civil proceeding under contract law. Property law mostly tends to the private as well, and actions involving property would generally be civil proceedings. But these three areas–tort, contract, and property–while falling into civil courts in common law jurisdictions, have nothing at all to do with the system of civil law used in France, Quebec, or Germany.
It can be a little confusing, but watch the context. The case of “Smith v. Jones” in a New York court would most likely be a lawsuit of some kind–a civil case–but since New York is a common law jurisdiction, it will be decided according to common law.
Common law judges use the principle of stare decisis (we stand by our previous decisions) – they look at what has been done in the past, try to find the most closely matched set of facts, and form a decision which does not contradict it (if they rule differently, they explain what makes this case different from the precedent).
Lower courts are obliged to follow the precedent set by the higher courts, who are obliged to follow the precedent set by higher courts, on up the food chain of precedent till you get to either the Supreme Court, or the highest State court, depending on the circumstances. Courts which are equal to each other do not need to regard the other’s decisions as precedents, although they might find their reasoning persuasive. An example of coequal courts, is say, the 1st, 2nd, 3rd, and 4th Departments of the Appellate Division of New York State. The 1st and 2nd departments are both in New York City and decisions by one will often influence the other, whereas they might be less persuaded by a decision of the 4th Department, which is upstate and rural. The 2nd Dept might choose to be more influenced by nearby New Jersey courts than the 4th Dept. As long as everyone follows the precedent set by their own state’s highest court (The New York Court of Appeals) without contradicting it, they can each tailor their decisions to local habits.
The end result is that the law accretes, in the sense that as more situations arise that aren’t anticipated by the code, the decisions are incorporated into the “common law” without the written laws themselves getting longer.
Civil law judges do not officially use precedent to make their decision and the judge’s decision does not add to the body of “known law.” They apply the statute to the facts to determine if a law has been broken. As I understand it, judges in civil law countries are civil servants and not necessarily, or even typically, lawyers themselves. "
The usual critique of the common law is that it is chaotic.
The usual critique of the civil law is that it is overly rigid.
Common law countries usually have short, relatively vague founding documents, like the U.S. Constitution or the Magna Carta. Compare to the founding treaty of the European Union – the table of contents is as long as the U.S. Constitution! It’s 152 pages plus 38 previously ratified protocols as riders. This difference in style probably accounts for the difficulties that prompted this question. People more accustomed to civil law will normally want to get everything hammered down, while those more accustomed to common law will want to allow for the law to develop over time as needed. Its just what you’re accustomed to. Both systems have their pluses and minuses.
I think I see where the confusion lies. In common law countries, there is a body of law (not “laws”) that constitutes the precedents confirming “what everybody knows is legal” – you can use public rights-of-way in an orderly manner, afoot or with proper permits for riding your bicycle, driving your vehicle, riding your horse, or whatever, if the jurisdiction requires a permit for that; you can walk into a store and buy merchandise by paying the price marked, and thereupon become the owner of the merchanise in question; that sort of thing. Though much of this has been incorporated into statue and codified over hte years, a subtantial pert of it is there because that’s the way things have always been done, legally and justly, and the courts take notice of the fact. That body of “we recognize that’s they way people conduct their affairs without statute law governing it” is the common law.
Civil law jurisdictions have codified law in place governing all those precedents, based in large part on the Code of Justinian, updated by the Code Napoleon, etc.
That’s “civil law”, meaning (1).
However, there’s a second meaning of “civil law”, which is as the opposite of criminal law, where the state prosecutes an offender in its capacity as keeper of the king’s/people’s peace. As I noted, most criminal law cases relate to crimes in the strict sense, offenses against a penal law. But criminal law procedure also governs other things, like traffic laws – anything where the state acts in behalf of the people as a whole to hold someone in violation of a legal mandate that he or she has violated. In contradistinction from criminal law, “civil law”, meaning (2), is the body of agreements, lawsuits, etc., between private individuals, or between a private individual and the state in its identity as a public corporation.
Weems embezzles $100,00 from his employer, the First National Bank. The bank can sue Weems for the money, a civil lawsuit. Or the state can charge Weems with the crime of embezzlement, a criminal charge. But if the state orders 10,000 widgets from Amalgamated Widget Corp. for use in building highway guardrails, and Amalgamated takes the money but stalls on completing delivery, the state as a public corporation can sue Amalgamated in civil court – refund the money or deliver the widgets posthaste … and pay damages for what the delay cost us.
So you have civil law (1) as antithetical to common law in describing a fundamental systematics of law, or civil law (2) as describing the antithesis to criminal law – two distinct meanings to the phrase.
I’ll try to add a bit.
Historical Origins
The clearest way to distinguish between the two systems is their historical origins. The civil law system is by far the older legal system, dating ultimately back to the Roman Republic. As far as we can tell, it developed from a system of customary law and case-law in the Roman courts, but given the Roman passion for order and systemization, it was continually refined by various commentators into a comprehensive orderly system. The highwater mark of this effort during the late Roman Empire was the decision of Justinian I , Emperor of the eastern Empire, to order a comprehensive study and re-organization of the law. This resulted in the Corpus Juris Civilis, which is the foundation point for most subsequent civil legal systems. By the time the Corpus was produced, Roman civil law was already about a thousand years in the making - and English common law didn’t even exist yet.
However, because of the barbarian invasions, the civil law went into a hiatus period in western Europe. There were efforts to keep it going, but the local customs of the various barbarian invaders also became part of the law. It wasn’t until the beginnings of the Renaissance that the Italian universities began to study the Corpus again in detail, and it became widely known, in the second flowering of the civil law. It began to spread throughout western Europe, as part of the new learning.
The major exception to this pattern was England. The English common law has its roots in the customs of the various Anglo-Saxon groups that invaded and settled in England, but it really flowered under the Angevin kings. Henry II was a very strong king who centralised control in his royal government, including the royal courts. The royal courts were the place to go if you had not got justice in one of the local courts or the various feudal courts of the local lords. The royal courts, based in London, developed a single body of law, common to the entire kingdom of England, derived from the local customs. Some local customs continued to survive into modern times, but for the most part, the common law was the same throughout England. Feudal principles also had a major impact on the formative period of the common law, since the focus of the common law at that time was mainly the law of property, in particular land, which was held according to feudal principles.
Since the common law began to develop before the second flowering of the civil law, the English essentially re-invented the wheel, but with differences based on their local customs and court systems. Like the Roman origins of the civil law, the English common law developed from the customary law and court decisions - but the major methodological difference is that the common law did not get systematised in the same way that the Romans began to systematise their law. Common law remained rooted in court decisions, not legal commentaries. That methodological difference remains one of the significant points of difference between the two systems even today.
Code / Non-Code
It’s often said that the distinguishing feature between the two systems is the existence of a code. I would respectfully disagree. There’s no doubt that the civil law tends to favour broad, systematic statements of the law, with the Corpus Juris Civilis being the outstanding example. However, the Corpus is not itself a legal code in the sense of a statute. Part of it was a re-statement of imperial statues, but other parts were commentaries and instructional materials. As a whole, the Corpus was a comprehensive re-statement of the principles of the civil law, that has subsequently been adopted by various countries. That adoption could be by statute or by code, but it could also be by decisions of the local courts, accepting the Corpus as an accurate statement of the law.
France, for example, did not have a civil code until 1804, but its laws have always been based, at least in part, on the civil law. France was not a unified state until fairly late in the medieval period, and its constituent parts had their own legal systems, under the local feudal lords. The Duchies of Normandy, Brittany, Acquitaine, and Burgundy all had their own local laws, as did the royal territories such as the Île de Paris, which developed its own customary law, known as the coûtume de Paris. Each of these local areas had their own legal systems, based in part on their own customary law, with feudal accretions, as well as borrowings from the Corpus. Even after France had been unified, these local divisions and local legal systems continued. It wasn’t until the Revolution that there was a strong push to have a unified legal system for all of France, as part of the sweeping away of the old feudal divisions and powers of the upper classes. This movement culminated in the Code Napoléan of 1804. That was not the first civil code in Europe, but it was the most influential.
Similarly, Lower Canada (now Quebec) is a civil law jurisdiction, but it did not have a civil code until 1866. Prior to 1866, it relied on the coûtume de Paris as its statement of law, supplemented by the grand authors and court decisions. Lower Canada joined the ranks of codification in 1866, but its law had always been based on the civil law (except for a brief hiatus immediately after the Conquest).
Another example on a civil law jurisdiction without a code is Scotland. Scotland is considered a civil law jurisdiction, although Scots law has been heavily influenced by the English common law. But Scots law has its foundations in the civil law, in part because during the numerous periods when Scotland and England were at odds, bright young Scotsman went to France and to Holland for their education, including their legal education, where they learned civil law. However, Scotland has never codified its law, so its methodology relies on case law and commentaries, in a way similar to English common law.
Role of Statutes / Judiciary / Authors
There are also differences in the way common law and civil law rank the hierarchy of legal authorities. Both systems now give primary place to statue law, although that was a major point of contention in England. That came to a head during the Civil War and subsequent Restoration period, which firmly established statutes passed by Parliament as the primary law. The primacy of statute law was established in the civil law system much earlier, during the Imperial period.
The more interesting point is the difference in treatment between court decisions and legal authors. In the common law systems, court decisions are themselves statements of law, unless overturned by a higher court or modified by statues. In the civil law, a court decision is simply a comment on the law, deciding a particular case, but is not itself a statement of the law.
The two systems also take a different approach to commentaries by legal academics. In the civil law, the commentaries of legal authorities, such as Ulpian or Pothier, can be considered to be statements of law. By contrast, in the common law system, commentaries by academics do not have status as statements of the law. They are simply one person’s interpretation of the law.
Why the difference between the two? The civil law approach dates back at least as far as the Corpus, where the law was re-stated by eminent academics, and included commentaries by academics as authoritative statements of the law. It was also influenced by the fact that civil lawyers learned their law at universities, with the academic traditions of learned academics writing treatises. In England, common lawyers did not learn their law at the universities, during the formative period of the common law. They learned their law at the inns of court, by going to court and listening to the arguments and decisions. Treatises by academics in the common law system are thus not authoritative statements of the law.
Examples of Differences
Now, with all that said, what are the actual on the ground differences between the two systems? If you look at results in particular cases, my impression is that both systems will produce similar results in similar cases. That’s not a surprise - both systems have evolved in the western European traditions of liberalism and capitalism, so will reach similar results in cases dealing with individual rights and business matters. However, the way they reach those decisions may vary.
For example, both systems put a lot of emphasis on freedom of contract, but have technical differences in determining if a valid contract has been made. Both systems have the concept of “consideration” as essential to the formation of a contract, but have somewhat different definitions of what constitutes “consideration.”
Another example is the law of gifts. In the civil systems, gifts are a form of contract, and can be sued upon in court like other contracts. In the common law system, gifts are not considered a form of contract, and cannot be sued upon in the same way as in the civil system.
Overall, though, the metaphor I use is the difference between two different types of cars. A Ford and a Honda will both get you where you want to go, and both use internal combustion, but there are a lot of technical differences under the hood, and the parts they use are not inter-changeable.
Northern Piper, LL.B. (common law), LL.B. (civil law).
In English law, there is the crime of conspiracy to corrupt public morals, which was unknown until the House of Lords discovered it in 1961, in the case of Shaw v. Director of Public Prosecutions.
As I understand it, each U.S. state and terrtory and the federal government all have codified their criminal codes, so (with possible exceptions for things like contempt of court, which was always an odd duck anyway), each criminal offense in the U.S. is a violation of a particular statute. As such, there are virtually no “common-law crimes.”
However, the codification of each of crime builds on common law concepts (like mens rea, an actionable mental state in committing the crime), and subsequent to the codification, there has been substantial common law interpretation of what the codified crimes mean. Significantly, the codification of the crime tried to capture the common-law elements of the crime, and the subsequent interpretations of the codification generally construed them consistently with the prior common law crimes.
Thanks for your replies. Having grown up in a common law state, I feel like I have a fairly good grasp on how the law works for a layman. But I still don’t quite understand how something like use of a right of way or a purchase or a gift is different in, say, France.
Thanks again,
Rob
Doesn’t it come from Magna Carta (see also here) which is statute law, so wouldn’t that count as Civil Law under your definition?
That’s a very impressive and educational summary.
Only one thing I will add: that as a matter of fact, while Justinian’s Code was supposed to be a summary and restatement of the commentaries that went before under Roman law, allegedly he (or rather the experts under his charge) in fact forged suitably “respectable” authorities where they needed to, in order to give his Code consistency (a major problem with the pre-Code law was the fact that major authorities disagreed on major points).
In short, while his Code purported to be a summary of previous opinion, in actual fact it was much more like a new creation - with backdated “authorities” to support it.
Don’t have an online source for this, but this book contains an interesting account: http://www.amazon.ca/Justinians-Flea-William-Rosen/dp/0670038555/ref=pd_bbs_sr_1?ie=UTF8&s=gateway&qid=1201640893&sr=8-1
One often hears of common-law marriages, although they seem to have been ‘abolished for all practical purposes’ in the UK since the Marriage Act of 1753. The concept is still alive and well though. In the US it appears they have the force of law in some states.
The most obvious examples in England and Wales are murder and manslaughter.
I dunno about that…seems like every second Supreme Court of Canada decision I’ve been reading lately has quoted (with approval) Hogg on constitutional law.
Excellent post though, and I have to say that in my two-and-a-half years of law school, the difference and the history between the two systems was never explained so clearly. Have you ever given a thought to teaching law?