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Guilherme Mazui

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What is the Difference Between Civil and Common Law?

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The main difference between civil and common law lies in the source of law and the role of judges in interpreting and applying the law. Here are the key differences:

  1. Source of Law:
  • Common law is based on past legal precedents or judicial rulings, which means that judges play a more active role in shaping the law.
  • Civil law is based on codified statutes and ordinances, which means that the law is primarily derived from written laws and codes.
  1. Role of Judges:
  • In common law, judges are considered the most important source of law, allowing them to proactively contribute to rules. They are often appointed after successful legal careers.
  • In civil law, judges have a more limited role in interpreting and applying the law, as the law is primarily derived from written laws and codes. They are often appointed straight out of university.
  1. Freedom of Contract:
  • In common law countries, freedom of contract is extensive, with very little or no provisions implied in contracts by law.
  • In civil law countries, the contractual model is more sophisticated, with provisions explicitly provided in contracts.
  1. Legal Systems:
  • Common law countries tend to base their legal systems on medieval England.
  • Civil law countries tend to be influenced by Roman and Napoleonic French legal systems.

In summary, common law relies more on judicial decisions and judges play a more active role in shaping the law, while civil law is based on written laws and codes. The role of judges in civil law is more limited, and they are often appointed straight out of university.

On this page
  • What is the Difference Between Civil and Common Law?
  • Comparative Table: Civil vs Common Law

    • Comparative Table: Civil vs Common Law

    Aspect Common Law Civil Law
    Historical Development Developed in England during the Middle Ages, spread to countries like the US, Canada, Australia, and India Developed in Continental Europe, particularly in the Roman Empire
    Sources of Law Rely heavily on case law and judicial decisions Law is heavily codified, meaning that there is a strong emphasis on written law, statutes, and codes
    Judicial Decisions Judicial decisions are binding, with decisions of the highest court generally only being overturned by the same court Judges in civil law systems are expected to strictly apply the law as written in the codes and statutes, with less emphasis on prior court decisions
    Freedom of Contract Extensive freedom of contract, with little or no provisions implied in contracts by law Less freedom of contract, with many provisions implied into a contract by law and parties cannot freely modify them
    Legal Procedure Adversarial system, with judges resolving disputes between disputing parties in an impartial manner Inquisitorial system, with judges playing a more active role in questioning witnesses and gathering evidence
    Role of Lawyers Lawyers play a significant role in the legal system, representing clients and presenting arguments in court Lawyers still represent clients, but their role may be less prominent than in common law systems
    Legal Terminology Legal terminology is often based on English language Legal terminology is often based on Latin, with terms such as in rem, in personam, bona fide, and res judicata
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    Guilherme Mazui

    Guilherme Mazui is graduated in journalism from the Federal University of Minas Gerais (UFMG) and a master's degree in Communication from the University of São Paulo (USP). In addition, he has experience in advertising writing and has worked as a content editor in several companies.