John S. Morgan is a board-certified civil law attorney from Beaumont, Texas. Attorney Morgan’s areas of expertise include personal injury, wrongful death, business litigation, and corporate law. In the following article, John S. Morgan explains civil law and common law, how they play out in practice, and the implications of each system for world citizens.
From one country to another, legal systems vary by statute, procedures, traditions, and more yet one of the most notable divides comes down to whether a nation follows a common law or civil law system. Under common law, prior judicial precedents set a legal standard for future rulings, whereas in civil law, codified statutes always rule supreme, regardless of past rulings explains John S. Morgan, attorney from Beaumont, Texas.
There are currently around 80 nations that follow a common law system whereas 150 adhere to civil law. The differences between these two systems can often have unique implications for their rule of law, which John S. Morgan, attorney from Beaumont, Texas explains below.
Characteristics of a Common Law System
John S. Morgan, attorney from Beaumont, Texas explains that a common law system is one in which judicial precedent — or prior court decisions — bind future courts in similar cases. This system is also known as “case law” or the “case-based” system. In contrast to civil law societies, common law countries do not have a centralized legal code that comprehensively covers all areas of law. Instead, judges rely on past decisions to adjudicate current disputes.
This system is often thought to encourage judicial creativity and flexibility, as judges can draw on a wide range of precedents to craft a ruling that is tailored to the specific dispute at hand. John S. Morgan, Texas explains that in a common law system, once a court renders a binding decision in a particular case, that decision becomes a binding precedent for all future cases involving similar facts and legal issues.
This principle is known as stare decisis, which is Latin for “to stand by things decided.” Under stare decisis, courts are expected to follow the precedent set by earlier decisions, even if they disagree with the reasoning behind those decisions. This promotes stability and predictability in the law, as citizens can rely on past court decisions to guide their behavior.
One of the most notable features of common law systems is that they are “adversarial.” John S. Morgan explains that this, unlike in a civil law system, the burden of proof is not on the judicial system to prove that a defendant is guilty. Instead, it is on the prosecutor to prove the defendant’s guilt beyond a reasonable doubt.
Characteristics of a Civil Law System
A civil law system is one in which laws are codified into a comprehensive system or code. This system is also known as the “code-based” system. In a civil law society, judicial precedent is not binding, which means that judges are not bound by past decisions when adjudicating current disputes states John S. Morgan, attorney from Beaumont, Texas
Instead, they are free to interpret the law as they see fit. However, they are still expected to follow the letter of the law when rendering a decision. The most notable feature of civil law systems is that they are “inquisitorial.” John S. Morgan explains that unlike in a common law system, the burden of proof is on the judicial system to prove that a defendant is guilty.
Nations Currently Following a Common Law System
The United Kingdom, the United States, Canada, Australia, and New Zealand are all nations that currently follow common law. When the British colonized these countries, they imposed the same judicial procedures practiced at home on the indigenous population, and, after they gained their independence, these nations retained the same common law system explains John S. Morgan, attorney from Beaumont, Texas.
The common law system is also prevalent in nations with a significant British influence, such as India and Singapore. In India, the common law system is used in the states that were formerly part of the British Raj. In Singapore, the common law system is used alongside the civil law system, as the nation was a British colony before it gained independence from Britain in 1963.
Nations Currently Following a Civil Law System
France, Germany, Italy, Spain, and Portugal are all nations that currently follow civil law according to John S. Morgan, attorney from Beaumont, Texas. These nations all have a shared history as Roman Catholic countries and, prior to the Protestant Reformation, the Church imposed its own legal system, known as the canon law, on Western Europe.
However, following the Reformation in the 16th century, some nations, such as England and Scotland, rejected the authority of the Church and adopted their own systems. John S. Morgan says that the majority of Western European nations retained the civil law system and carried it over to their colonial territories. Today, much of Latin America and Africa continue to use the system adopted from the French and Spanish.
Final Thoughts
Although the two systems are based on different interpretations of jurisprudence, both common and civil law have become the two most widely practiced approaches to the law around the world. However, attorney John S. Morgan says that the type of system a country chooses to follow often depends on its colonial past and historical relationship with the Roman Catholic church.
