English law (common law) and civil law are two major legal systems used around the world, each with distinct characteristics and principles.
1. Origin and Development:
- English Law: Originated in England and is based on court judgments and precedents. It evolved over centuries, incorporating custom, judicial decisions, and legislative action.
- Civil Law: Originated in mainland Europe (Italy and France) and is primarily derived from the Roman law. It is codified, meaning it’s based on comprehensive legal codes and statutes that are applied and interpreted by judges.
2. Role of Judges:
- English Law: Judges play a crucial role in shaping the law. They interpret and apply laws but also make law through precedents (previous court decisions). The doctrine of ‘stare decisis’ (to stand by things decided) is fundamental, where past decisions heavily influence future rulings.
- Civil Law: Judges have a more limited role as they apply and interpret the codified laws. They do not create law and are not bound by precedents. Their function is more about applying the written law to individual cases.
3. Sources of Law:
- English Law: Primary sources include legislation (Statutes) and case law (judicial decisions). Secondary sources can include academic writings and expert opinions.
- Civil Law: The primary source is the legal code, which provides detailed rules for all subjects of law. Judicial decisions may be consulted for guidance but don’t have the binding precedent effect as in English law.
4. Legal Proceedings:
- English Law: Characterized by adversarial proceedings, where two opposing parties present their case to an impartial judge or jury. The judge’s role is to ensure fair play and not to investigate.
- Civil Law: Generally follows inquisitorial proceedings, where the judge plays a more active role in investigating the case and questioning witnesses, often without a jury.
4. Flexibility and Adaptation:
- English Law: Considered more flexible as it can adapt to new situations without the need for new legislation, thanks to the precedent system
- Civil Law: Can be less flexible as changes in law typically require legislative action to amend the existing codes.
5. Application in Different Countries:
- English Law: Forms the basis of the legal systems in many countries, especially former British colonies, including the United States (except Louisiana), India, Canada, and Australia.
- Civil Law: Predominant in continental Europe, Latin America, parts of Asia, and Africa. Influenced by the Napoleonic Code, the German Civil Code, and other legislative texts.
Each system has its strengths and weaknesses, and some countries incorporate elements of both in their legal systems, known as mixed jurisdictions. The choice of system often reflects a country’s history, culture, and governance philosophy.
