Differences between common law and civil law

There are several differences between common law and civil law. The main difference however, lies in the sources of the law. Judicial cases (the interpretation and analysis of statutes including) are regarded as the main source of law in a common law system. This gives the judges an active role in developing the law. Additionally, in order to maintain consistency, a system of precedent is used whereby issues decided by higher courts would bind lower courts on those same issues. This will be explained in more detail later on.

In contrast, in a civil law system past cases are considered as loose guides and judges have a more limited role. Codes and statutes are designed to cover all situations and judges in civil law systems are seen more as investigators rather than the arbitrators of the common law system.

Features which distinguish the two systems

Main feature of the legal system	Common law system	Civil law system
Development and continuity of legal system	Evolutionary – this allows judges to make changes on an incremental basis. This allows for a gradual development of the law.	Revolutionary – sudden changes which transform the state of the legal rule. This will occur through new codes/legislation.
Major source of law	Custom and practice	Codes (codification) and statutes
Reliance on precedent	Yes	No
Judicial role in law making	Active and creative	Passive and focus on the letter of the law (code)
A judge may review inferior decisions or question the way legislation has been used	Yes (judges can hear cases to see if the law has been properly applied)	No
Where decisions are made	During the hearing of the trial	Investigation and examination by judge or examining magistrate
Format of the trial	Adversarial	Inquisitorial
Function of lawyers	Debate and oppose	Advise and inform
Judge’s role during trial	Referee or umpire	Direct/examiner

 

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You can read more about the differences here from the Open University, as well as listen to a podcast from the BBC's "Unreliable Evidence" program, in which Clive Anderson (a lawyer) interviews several legal experts.

 

I strongly suggest that you spend the time to read the links as sometimes a TMA (Tutor Marked Assignment) may come on differences between the two legal systems. And always keep in mind that all of Europe uses a civil law system.