Distinctions between Common Law and Civil Law

The aim of this essay is to look at the basic distinctions between common law and civil law and also common law and equity. This essay will firstly look at the historical context of civil and common law and then contrast distinctions between the two. Secondly this essay will examine the historical context of equity and the development of these laws and it is a further aim to disambiguate some confusion generated by the term “common law”.

Between the 8th and 11th centuries Britain operated an informal law system based on oral customary rules which varied according to the region. In the south of the country, the law of the Jutes would be different to that operated in the midlands under Mercian law. A disparity was displayed between communities as different “public assemblies” were convened with different customs. In 1154, Henry II introduced a unified court system moving the law system to a national level by creating travelling judges called circuit judges and creating a law that was “common to all”. The transition from local level to national justice was gradual. As circuit judges discussed cases back in Westminster, they based their future decisions on the best customary rulings. As the common law developed, the doctrine of stare decisis, letting previous decisions stand, emerged. Over time, to create certainty and consistency, judicial precedent became binding and common law became synonymous with judge made law.

Civil law refers to those other jurisdictions which have adopted the European continental system of law. The civil law system was mainly derived from Roman law, in particular the Corpus Juris from Emperor Justinian I in 529 AD. Further development of civil law occurred influenced by Germanic, ecclesiastical, feudal, and local practices. This codification of laws remained largely forgotten until reprinted in 1583 by Dionysius Gothofredus under the name of “Corpus Juris Civilis” and was further expanded upon by the Napoleonic code introducing civil law to European countries formed during and after the Napoleonic wars.

The distinctive feature of common law is that it expresses the law of the courts through judicial decisions. This may also be described as being case centred or judge centred. The law developed on a case by case basis. Judges do have the flexibility to deviate from previous judgments by judicial creativity by distinguishing a particular situation, but otherwise, they have to follow a system of binding precedent. In contrast, civil law is based upon provisions of codes and statutes, from which solutions to particular cases are to be derived. Common law courts use the adversarial system, in which two sides present their cases to a neutral judge. In contrast, in civil law, the inquisitorial system is used, where an examining magistrate serves two roles by developing the evidence and arguments during the investigation phase whilst simultaneously representing the interests of the state in a trial.

As the common law progressed, there was a reluctance to deal with matters that could not be processed by common law. The reluctance to deal with these cases caused injustice and ultimately dissatisfaction with the judicial system. The perception was that common law courts were slow, over technical and too expensive. The only available remedy under the common law system was damages in the form of monetary compensation; however, this sanction did not always serve the best interests of justice. The Lord Chancellor, the head of the Chancery, which by this time had become an important department of state, was the head of the King’s Council and, from early times, petitions seeking the King’s ‘extraordinary justice’ were referred to him. As referrals became more frequent, in 1474 the Chancellor made a decree upon his own authority forming the characteristics of a court. In giving remedy in these cases, new law was being created with its own rules and procedures rather than natural justice. This new law became known as ‘equity’, in contrast to the ‘common law’ dispensed in the common law courts.

Equity developed its own doctrine which included such principles as equity looks on that as done which ought to be done, he who comes to equity must come with clean hands, delay defeats equity and equity will not suffer a wrong to be without a remedy.

Equity recognised rights that could not be dealt with under common law. Equity of redemption was introduced and must be exercised by a mortgagor within a certain time after having defaulted on an obligation. This prevented unscrupulous lenders from absenting themselves on the day payment was due, in order to profit through foreclosure and still exists today as the equity of redemption. Equity, unlike common law, recognised beneficiaries of trusts.

The inevitable clash between equity and common law occurred with the Earl of Oxford’s Case (1615) 1 Ch Rep 1, where conflicting judgments between the common law courts and the Court of the Chancery were referred to the King for a decision. The King advised that where there was a conflict, equity should prevail. The Judicature Acts 1873-1875 provided that there would no longer be separate courts administering common law and equity, although the two branches of law are separate as illustrated by the Queen’s Bench Division for common law and the Chancery Division for equity. Equity, to this day, still prevails under s. 49 of the Senior Courts Act 1981.

Equity offers remedies not available through the common law. Injunctions may compel a person to perform an action or to refrain from an action. Specific performance may compel someone to perform their obligations under a contract or trust. Rectification may offer a remedy whereby a court orders a change in a written document to reflect what it ought to have said in the first place and rescission may unmake a contract between parties.

The term common law may be confused if it not understood or not used in the correct context. Common law may be used to describe a legal system which has developed from the English legal system, such as law used by America or Australia. Another connotation is that ccommon law may be used to distinguish a legal system from a civil law system. Further to this, common law may be used to mean case law, where law has been developed using a system of precedent. Common law may be used to distinguish it from statutory law. Murder is a common law offence but the defence of diminished responsibility and provocation are statutory under sections 2 and 3 of the Homicide Act 1957. Common law could refer to a system which is common to the whole of the country.

Bibliography

Acts of Parliament:

Judicature Acts 1873-1875

Senior Courts Act 1981

Homicide Act 1957

Case Law:

Earl of Oxford’s Case (1615) 1 Ch Rep 1