In most of the nations around the world, two fundamental legal systems prevail, namely the civil law system and the common law system or we can say, they are legal systems that are more or less derived from these two. The common law system is also called ‘judge-made’ law and is a more flexible, less prescriptive system that prioritizes published judicial opinions of the past and then hearings are designed based on some principles. Basically the courts followed past cases and opinions and applied them in their current cases. Termed as ‘historical accident’, this system’s origin is said to be from Britain’s invasion by Normans in early 17th century.
Civil law, on the other hand stems from early Roman Empire and then its practice spread through European nations. In case of civil law system, it is codified statutes that predominate. Here, the judge’s role is no more than that of an investigator, where charges are evaluated and facts are considered to reach the verdict which is found in legal codes. In shaping this system, the fundamental issue that was kept in consideration was the positioning of the judge in relation to statute. It is a compilation by Roman Emperor Justinian of codes of law.
The French code civil is considered very intellectual and successful codification of law and therefore we can find its significant influence on the legal structures of so many other countries.In this essay we will highlight certain characteristics and general attributes of the English common law system and the French civil law system and draw a comparison between them. By doing so, we shall be able to have better understanding of the similarities, differences, merits, demerits of different aspects in these two legal systems. More detailed knowledge or close observation makes it clear that there is no pinpoint distinguishing feature between civil and common law. Some aspects that are in fact distinctive and set out the differences in the systems will be discussed.
Source of law: where we often argue that common law is just “judge made” and civil law is codified law, it is not entirely correct. Codified laws are also present in common law nations. They are result of legislative process and have to be taken into account in judgments while also considering existing judge-made precedents. What we have got to notice is that, in both legal systems, codes do exist and are put into practice but there is a difference in style. Codes and statutes basically provide statements of principle and do not define much in civil system. Whereas, common law codifying statutes define in more detail, the rules that set out situations and conditions of specific application or exception.Principle of precedents: In the common law system, the primary concern for judges is the doctrine of Stare decisis, which means they are bound by precedents rendered by higher courts. Stare decisis refer to ‘Stare decisis et non quieta movere’ i.e.: Stick to the decision.
For example, in Donoghue v Stevenson [1932] AC 562, court decided manufacturer was responsible for the care of the consumer of the product. This was followed in Grant v Australian Knitting Mills [1936] AC 85. Similarly, the decision inShaw v DPP [1962] AC 220 was followed in Knuller vDPP [1973] AC 435. In addition, there exist persuasive precedents ‘obiter dicta’, for example, R v Howe & Bannister, followed by R v Gotts [1992] AC 412. The decision of a higher court can overrule the binding of the precedent or can be reconsidered if overridden through a statute. However, binding of a precedent is not applicablewhen the current case and the precedent case are dissimilar or if the decision is similar irrespective of the different factsof the cases. Moreover, it also includes an exception which does not involve any references or relevant statutes forbinding to precedent and judgment is decided per incuriamreferring to ‘through want of care’. Also, this exception is not seen as a precedent to follow in future cases.
Common law is more malleable than statutory law and gradual over a decade or more, which means the law can change but without a sharp break. In case of civil law, while it’s true that Stare decisis is not applied in civil law system, precedents do have a convincing role in reaching a decision. Courts do have to consider to some extent being bound by decisions of higher courts. Anyways, the countries of the European Union are bounded by law to the decision of European Court of Justice. More appropriately put, precedents act as persuasive factors. When the similarity with the previous case is certain up to a level, courts do lightly consider past decisions. In some sense we can say, a trend is followed. Civil law system has come under criticism for its instability and uncertainty in some areas of law even though significant importance is given to certainty and stability. It is believed that the lack of stare decisis among other things, such as political unrest and faults in separation of power are the major causes for this instability.Method of deciding cases: The prime idea of common law is ‘case by case reasoning’. Decision is reached by taking historical data, facts and built opinions about everything related to the current case. There is no pre determination of how to solve the problem before the problem appears. Existence of a statute and clear text means straight abiding by the provisions but sometimes doubt and uncertainty will make the statute inapplicable. That is when the judge will look back into previous decisions. Civil law judges first search the legislation for the respective principle and draw out the rules for it. The prime idea is to make right of things that have gone wrong and putting the victim in a place where he would’ve been if the damage didn’t happen. As seen in cases, Lim Poh Choo V Camden and Islington Health Authority [1979], Rees V Darlington Memorial Hospital NHS Trust [2003].
Then facts regarding the case are considered and rules applied. The reasoning process is to go from general principal to special case. It doesn’t mean common law judges don’t discuss general principles or that civil law judges don’t consider previous cases. They do it with a difference in approach and difference in point of view even if the situations are quite similar.Legislation: General principles don’t make up statutes in common law. Rules are constructed that are designed for controlling situations defined in details whereas civil law sees legislation as the most important source of law. In fact, when a case arises with a new situation, civil law judges search in the legislative texts and the specific principles so that they can relate to as much as possible and on the basis of that, come to the new decision.
Appointment of judges:
In England and Wales, in fact in most common law nations, judges play a very vital role as they are burdened with designing the law. Therefore judges are recruited from immensely experienced lawyers, especially when it comes to judges of higher courts. In France, it is possible to see freshly graduated, young and skilled lawyers appointed as judges in lower courts with no previous experience. Normally most do get a year or two of experience working in chamber with a few experienced judges before being appointed in court.Other comparisons: International commercial arbitration is a point where both legal systems converge. Generally, both parties here opt for private arbitrator as it saves time, money and maintains confidentiality. One more point of intersection between two systems is UNIDROIT Principles of International Commercial Contracts.
A difference between common law system and civil law system is the approach towards foreign law recognition. In common law courts, it is the parties that will be responsible in proving a foreign law to the court and if they fail to do so, the domestic law will be considered. On the other hand, civil law judges have the responsibility of finding the foreign law and then appropriately applying it and the principle underlying it is ‘iura novit curia’ which means the judge knows the law. Comparisons can be drawn on the method of questioning between the two systems as well. In common law system, attorneys from both parties can carry out ‘cross examination’ on the witnesses. Generally own witness is questioned first and then it is opposition attorney’s turn to question. In civil law, the judges collect evidence by asking questions to the witnesses. The attorneys do get the chance to raise additional questions.Writings of legal scholars have little or no effect on decisions in common law whereas in some civil law jurisdictions they are of massive importance.
To conclude, we can say that even though the two systems have completely different way of operating or are of opposite extremes, they have made some movements towards each other due to similar social, economical and technical conditions that led to finding similar solutions. Each of the systems has its own individuality and both have been successful in serving well and satisfying social and economical needs of the changing society. They provide a great balance between stability, security and flexibility, adaptability. One very distinctive legal system prevails in the People’s Republic of China (PRC). Although in theory it is civil law,functionally it is a mixture of civil law and socialist law.From an ideological point of view, this legal order is completely new. It took shape after the communist party came to power defeating the KMT government in 1949.Influences from traditional beliefs and thoughts are evident and form distinct features. Marxism and Leninism form the basis on which the existing legal framework stands.
Over the years, The Chinese legal system has established many civil and private laws in legislation and indulged in judicial practices that abide by something that is additional to thetraditional civil law, to maintain the social and economic status of the country. New litigations and provisions on causes of civil law actions were introduced in Supreme people’s court, out of which many lacked clarity and understanding. During this transition, the Chinese government faced many civil disputes and social conflicts which led to the codification of civil law in china. It is important to understand why Chinese legal system opted to lean towards the civil system in the first place.
The Chinese legal system could not adopt the common law system due to unfamiliarity with the case laws. And it was important for the Chinese legal system to consider its traditional Chinese legal heritage and local legal resources for future development of the constitution. The Chinese legal tradition acknowledged the acquisition of Civil law tradition because of its historical roots in dynasties like ‘Jiuzhanglv（九章律）’ of the Han Dynasty (汉朝) and the ‘Tanglvshuyi（唐律疏议）’ of the Tang Dynasty（唐朝）as they had exclusive set of codes that resembles to one of the main features of civil law tradition. Likewise, China started importing the foreign laws into the system which is evident in the reformation period of Qing Dynasty.Hence, acquiring the civil law system was easier for china in modernizing the legal system. Even the recent enacted codes are based on civil law models influenced by European system especially Swiss and German civil system that lead to the settlement of Chinese civil Code.
This essay will provide an understanding of the historical development of the Chinese legal system and in doing so; will outline similarities and differences from a typical civil law system.Influence of Chinese traditional law: One of the most important reasons why the legal system is not considered as a ‘pure’ civil law system is because it contains some key Chinese characteristics. One of them is the influence of Chinese tradition. The Chinese legal culture was influenced by Confucianism that emphasizes on moral principles and humanism. They preferred Morals over legal codes as they believed that the legal system cannot be restricted only to harsh punishments and strict laws. They considered moral principles and moral conventions in analyzing the legislation and adjudication of law as they thought; moral persuasion assisted by laws and punishment is the best way to prevent social disputes in society. Apart from this, adjudication of disputes was settled through mediation.
The Confucianists aimed to avoid lawsuits and deal the arguments with ‘harmony’, which is placed above all laws in adjudicating disputes and believed to have the highest value in Chinese legal culture. The ancient Chinese legal system is a combination of heavenly orders, legal codes and human relationships where morally upright judges and government officials were seen as role models. As far as humanism is concerned in liberalizing the legal system, leniency towards the weak and disabled, towards women and children, towards those who surrender and cooperate with the law enforcement, also proper evaluation before the execution of the death penalty, all these regimes are adopted from different dynasties during different times to modernize the legal system.
General Principle of Civil Law:
Before the founding of People’s Republic of China in 1949, the civil law that existed was heavily influenced by German style. In 1986, a law was passed, General Principles of Civil Law that saw the re-drafting of general parts of the civil code. This resulted in an adoption of style heavily influenced by ideas on Civil law from the former Soviet Union. The general principles have been considered in high regards by many scholars and countries because of its distinctive lay out. While in one chapter, there was a display of basic civil law principles, in other chapter there was civil liabilities.
Political leadership:
When we talk about the legal system of PRC, the status of Chinese Communist Party (CPP) is a strange yet, unfortunately a very important factor. This is due to the unity of the party and the law and even on this date this unity exists without any need to conceal it. Unlike other civil law nations, china’s constitution states clearly of a democratic dictatorship. The CCP is the only existing political party without any real opposition and beholds the power to control and to supervise all sorts of legal development within the country. The judicial system is not independent from the power of CCP, neither is the military. In fact, the CCP has the power to review and make amendments in the Constitution. This kind of power to political leadership is very rare in a typical civil system.
Influence of common law:
there has been a recent trend of using ‘guiding cases’ in order to achieve greater adjudicative consistency across lower courts. This has brought widespread criticism as some argued it to be the likes of ‘stare decisis’ like authority and anticipated China’s civil law system to come somewhere close to Anglo-American common law system. Hong Kong adopted the British style common law over a century and half of British colonial rule and this, over time had a major influence in the legal system of PRC.
Separation of powers:
This model divides the government in to branches that are independent and that prevent over concentration of power of any one single branch. Typically there are three branches, legislature, an executive and a judiciary. In some nations executives and legislatures are unified. In china, the government is designed based on unity of powers, so they are not three independent parties collectively but exist as one unified whole. This was a move of the CPP to hold ultimate power and they have prevented calls for separation of powers. The bridge drawn between party and state is incomprehensible in most democracies and is significant when it comes to the issues of adjudication.
Socialism:
The ideology of Socialism had reached its peak during Mao’s era and only the economic reform could change the perspective of china towards the social beliefs. In 1993, the system of planned economy was eliminated due to its transition to a market economy. As far as Socialist effects are seen, primitively there only existed the concept of ‘public ownership’ but recently ‘private ownership’ is recognized and have started to change the economical status of the country. We can conclude, after assessing the position of the Chinese legal system in respect to a typical civil law system that China has muddled through for a long time without a civil code. But it’s also true that China’s recent initiatives to come out from the aspects of their legal system that took them backward in the face of economic and social modernization, have met some success. These changes display a shift towards a more typical westernized tradition, a proper civil code to be precise. The plan is that Civil Code will replace the existing General Principle of Civil Law, the Rules and other civil regulation.
