Common Law and Civil Law

Learning about forms of the law is not typically a part of any curriculum except in law school.  This is a mistake.  Unless you want to live under a king and be dictated to you need to understand the source and foundations of your system of law.

American government and law are based on the concept of common law. Read why common law is necessary for freedom.
Governments over time tend toward more power for themselves and less freedom for their people. If we want our children to have the freedom we have had, the people need to be educated on the basic principles that keep us free.

Here are common law and civil law explained in easy to understand terms.

Three Basic Legal Systems

There are three basic structures for legal systems. They are common law, civil law, and religious law.

3 types of law common civil religious

Common law was developed in northern Europe during the middle ages by Germanic and Nordic people. It was brought to England by conquerors. In modern times England has spread common law around the world, especially to the many places that were settled or colonized by the English.

Civil law began with the Romans. The Byzantine Emperor Justinian, a Roman himself, assembled a team of experts who condensed and simplified the Roman law into one single body of law. The Byzantine system spread through southern Europe and then northward. Today nearly all of Europe uses civil law.

Religious law would include systems like Sharia law, a law system used among many Muslim nations.

This map of the world shows the nations that use civil law in blue, common law nations in red, and religious law nations in green. Almost none of these countries are pure in their law systems, but these colors represent the legal tendency they base their system on.

Worldwide Legal Systems
We’re not going to go into religious law in this discussion. What we want to do here is compare and contrast common law and civil law.

Common Law

Case Law

Common law uses case law as its basis. In other words the law is established case by case as judges make rulings. Current judges read the decisions of the past and base their decisions on what was decided before. Lawyers read the decisions of the past and base their arguments on those past decisions.

Setting Precedent

If no ruling on an issue has yet been made then judges decide in the absence of laws, in essence creating law or precedent.

Interpretation

Judges also are the ones who determine the meaning of legislation in individual cases. They interpret the law.

Hone the Law Through Time and Experience

In countries with common law a long process of time and thousands and thousands of rulings determine the legal decisions of the present. In other words centuries of human experience and wisdom is utilized to arrive at correct and just decisions. That does not mean bad decisions are not made. It also does not mean that bad decisions can not be overturned and new precedents set. But a good judge would think very carefully and hard before changing the direction of thousands of decisions that came before.

Image in the public domain, Wikimedia.

In fact the ability to change, or hone, the law into an ever more just system is the main strength of common law. The fact that judges confirm the law from the past and establish the law for the present and future is the reason common law countries elect local judges by the people. The people ought to be choosing wise and just men and women.

Power Derived From the People

In common law it is crucial to understand that the judges are chosen by the people. The people have the power over the courts just as they have all the other powers of government. They give these powers to those chosen to judge them. And so the common law system stems from the people.

Two Principles of Common Law

All common law is based on, or should be based on, two principles.

  1. Do all you have agreed to do.
  2. Do not harm another.

In other words, if you have made a contract then the law will demand that you keep your end of the bargain.  And if you harm another person physically, financially, in reputation, in property, etc then the law may demand that you make reparations or suffer consequences.

Civil Law

Codified

Codified law, or civil law, is written by government officials. Courts of law make decisions based on the codified law, not on previous decisions. Judges have no power to change or adjust an unjust law.

Handed Down From on High

If a new situation comes up the judges in a civil law system can not make a decision until new law is written by the government. So while common law is based on the power of the people, civil law is based on the power of government.

Changeable

Civil Law can and is changed frequently as new parties get into power and impose their will on the people they rule over.

Inflexible

But in individual cases the civil law is inflexible. It does not allow for an evolution in the ideas of justice or changes in circumstances or technology.

Not Based on Principles

Unlike common law, civil law is not based on any particular set of principles.  Every group who comes to power may force their own principles on their subjects.  People under a civil law system do not govern themselves to the extent that people in a common law system do.

Case Study

A new set of legal problems has recently arisen in the world due to the Internet. These problems deal with copyright issues. It has become easy to transmit and use digital data. At the same time the monetary value of images, videos, and songs has dramatically declined. The strength of the Internet is that data and knowledge are so easily shared. It has made the world a better place. But there are people whose work has been stolen and shared without pay.

Image in the public domain, Wikimedia.

There are also people who claim ownership of things in the public domain. And there are disputes over fair use, the sharing of digital data between friends when no money changes hands, and on and on. How do the courts resolve the problems?

This image shows how some people fear the public domain. It often ends up looking like a fight between the old established industries and the new innovative little guys. Image in the public domain, Wikimedia.

In a common law country individual cases will be brought before courts of law and many different judges in different jurisdictions will make decisions. These decisions will be based on previous copyright cases as well as previous cases regarding the public good. Judges will try to base their new decisions on what is the most just for all parties. Over time a body of case law will be built up. There will be a trend starting to develop which will determine the direction that cases in the future will be decided. If at least most of the people have done their job and elected competent, fair judges then the new laws will be a consensus of the most just way to deal with Internet copyright law.

But in a civil law country a different process will happen. If no law has been written about an issue, like Internet copyright issues, then a judge will often make no decision, refusing the case. At some point the government will create a new law about Internet copyright to address the issues. No matter what decisions have been made in previous cases all future cases will be decided based just on the new law that was written. It may be fair and it may not be fair. When a new party or faction comes into power the law may be changed. Previous decisions will not matter and all future cases will be decided only on the new law.

Summary

Common law is based on the power of the people and on thousands of prior cases and hundreds of years of human experience. It is constant, but not inflexible. It is able to deal with new legal issues as they come up. Civil Law is based on the power of the government of the moment. It is subject to the political winds of the day. It is changeable, but inflexible. It cannot by itself deal with new issues, but must wait for legislation.

Printables

Here is a set of printable pages, Common Law vs. Civil Law, to display the major differences between Common and Civil Law and the two principles of Common Law.

common_law_and-_civil_law

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