Comparison of Civil and Common Law

In this part of my essay, I am going to compare civil and common law. First of all, before comparing those two legal system, let me to give the definitions of civil and common law.

“Civil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges”.(en.wikipedia.org)

There is no doubt that civil law is the most prevalent and oldest surviving legal system in the world. Civil law system mainly derive from the Roman Empire, and more particularly, the Corpus Juris Civilis issued by the Emperor Justinian ca 529AD [1] . In the Byzantine Empire, it was a tremendous reformation to bring civil law together into codified documents. Also, some religious laws partly influenced in civil law such as Canon law and Islamic law. Initially, substantive and procedural rules are thoroughly discussed in the civil law and the law itself has a long, complicated history. The principle of civil law is to support all citizens with an accessible and comprehensively written collection of laws which apply to them and which judges must abide by.

According to the foundation of some authors “consider civil law to have served as the foundation for socialist law used in Communist countries, which in this view would basically be civil law with the addition of Marxist-Leninist ideas. Even if this is so, civil law was generally the legal system in place before the rise of socialist law, and Eastern Europe reverted back to civil law following the fall of socialism [2] “.

Common law that is, the body of law that develops over time through the decisions of judges deciding outcomes on a case by case basis, rather than from statutes or constitutions [3] “In current days, the common law is often and widely defined as judge-made law (as opposed to statute law), and it is clear that the primary roots of the common law system reflect a body of essentially local customary practices and usages which are applied by judges rather than necessarily ‘made’ by them. In common law system, the law is, thus, found not only in government statutes, but also in the historical records of cases. One of another very indispensable feature of the common law tradition is equity.

Generally, common and civil law are different from each other. One the basis premonition of civil law is that, to permit an easy accessibility to all citizen to its collection of rules which is well written. In common law, it is different from case to case depending on the customs of the society whereas civil law has a predefined written rules [4] .

Substantive and procedural law

In this part of my essay I am going to write about substantive and procedural law. Here, I will give a quick comparison and the differences of these two legal terms. So, first let me to give a brief definition of the legal terms.

“A substantive law is the legislation which defines the principles, objectives, circumstances, limitations etc governing the society and the rights of the individual”. [5] For instance, one has a right to express but it limits that right when it is opposite to the national integrity.

“Procedural law, on the other hand, is the set of rules followed when a court is hearing a case – so it basically dictates what will happen during a civil or criminal proceeding”. [6]

Here is a clear and deeper explanation of distinction of substantive and procedural law. Substantive law also can be considered as a branch of law which defines the rights and responsibilities of a civilian. Moreover, this legal system the branch of law which solve who is the winner of the case, and the compensation can be received.

Substantive law describes how the facts in a case will be handled and about charging a crime, while procedural law describes the step by step process that the case will go through and the manner in which a case will proceed. [7]

Procedure

“A procedure is a specified series of actions or operations which have to be executed in the same manner in order to always obtain the same result under the same circumstances [8] “.

Civil procedure

Civil procedure in Continental law

“Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters).” [9]

In this part of my essay, I will write about civil procedure in continental law.

It is said that civil law is considered the core of the substantive law in civil law tradition, so civil procedural is the core of procedural law. There are three different stages of civil procedure in the continental law jurisdiction.

The first one is preliminary stage in which documents are submitted and a hearing judge and also known as the instructing judge assigned.

The second stage is evidence taking stage, the hearing judge receives the collected evidence and give a summary record.

The last stage is a decision-making, in this stage the judge who is responsible for adjudicating the case consider the record transferred to them by the hearing judge, receive the explanation, hear their arguments and render decision [10] .

“In fact, in a civil countries the normal civil procedure is actually sequence of separate meetings of and written communications between counsel and the judge, in which evidence is introduced, testimony is given, procedural motions and rulings are made, and so on.” [11]

Civil procedure in Common law

As it is widely known that in the United States of America strong attention is paid in procedural rights in the beginning of a student’s legal education