Common law refers to the legal system derived from English law. Civil law is derived from Continental European legal systems
What is common law?
In the United States, common law refers to the legal system derived from English law. This system is in contrast to the civil law system, which is derived from Continental European legal systems. Common law consists of judge-made decisions, rather than statutes enacted by legislatures.
What is civil law?
Civil law is a legal system that is based on codified laws, as opposed to common law. This means that civil law systems have a written body of laws that are followed by the courts, as opposed to relying on precedent or custom. Civil law systems are often used in Continental Europe, and many former colonies of European nations (such as Quebec in Canada) have retained civil law systems.
Common Law and civil law, how are they different?
The main difference between common law and civil law is that common law relies on judicial precedent, while civil law relies on codified laws. Judicial precedent is a decision made by a court that becomes binding on future courts when they hear similar cases. Codified laws are statutes enacted by legislatures that are meant to be interpreted by courts.
In general, common law systems are more flexible than civil law systems. This flexibility allows judges to adapt the law to changing circumstances and evolving social norms. It also means that there is more variety in how cases can be decided. In contrast, civil law systems are more rigid, as they are based on a comprehensive set of written laws that are intended to cover all possible situations. This rigidity can lead to inflexibility and inconsistency when judges attempt to apply the laws to new situations. For example, in a civil law system, a judge may feel bound by previous decisions even if they believe that those decisions were wrong. In a common law system, however, judges have more flexibility to depart from existing precedents.
Another key difference between common and civil law is that common law systems tend to be adversarial, while civil law systems are more inquisitorial. In an adversarial system, each party presents its case and tries to prove why the other side is wrong. An inquisitorial system is more like an investigation, where the judge plays a more active role in uncovering the truth of the matter.
How common and civil law are used in the United States
In the United States, common law is used in all 50 states except for Louisiana, which uses a mix of common law and civil law. Most federal laws are also based on common law principles.
Civil law is mainly used in criminal cases, as well as some areas of family and contract law. Federal laws that are based on civil law include copyright, patent, and trademark laws.
Is civil law better than common law?
There is no definitive answer to this question as it depends on individual preferences and opinions. Some people may prefer civil law because it is codified and therefore more predictable, while others may prefer common law because it is flexible and allows for a greater variety of outcomes. Ultimately, it is up to the individual to decide which legal system they believe is better.
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