Civil Law and Common Law: a comparison of two systems

Civil law and common law are two very different models of legal system in terms of structure and application.

The Italian legal system is structured on a model that has always been called civil law, and is in contrast to the typical model of Anglo-Saxon systems, called common law. The two types differ in origin, structure, and distribution of functions between the powers of the state, and especially in the roles that the written law and the decisions of jurisprudence take on in the two systems in relation to concrete cases. Common law refers to the legal system based on the prevalence of case law, whereas civil law is a system based on the codes and laws of a country. On the basis of this assumption, there would be two protagonists in this apparent opposition: the judge and the law; jurisprudence and doctrine.

It is interesting to understand the origins of this differentiation.

Legal systems in countries around the world are generally divided into two traditions: the Anglo-Saxon tradition of the common law and the Latin/Roman tradition of the civil law. There are roughly 150 countries that have what can be described as civil law systems, whereas there are about 80 common law countries.

The common law tradition emerged in England during the Middle Ages and was applied within British colonies across continents. At the same time, the civil law tradition developed in continental Europe and was applied in the colonies of European imperial powers such as Spain and Portugal. In the nineteenth and twentieth centuries, it was also applied in countries formerly possessing distinctive legal traditions, such as Russia and Japan, that tried to reform their legal systems in order to gain economic and political power comparable to that of Western European nations.

Even though England had many profound cultural ties to the rest of Europe in the Middle Ages, its legal tradition developed differently from that of the continent for a number of historical reasons. Today the difference between common and civil law lies in the main source of law. Although common-law systems make extensive use of statutes, judicial cases are regarded as the most important source of law, which gives judges an active role in developing rules. In civil-law systems, by contrast, codes are used to cover all eventualities and judges have a more limited role of applying the law to the case in hand.

Common law was originally developed through custom, at a time before laws were written down. It is generally uncodified. This means that there is no comprehensive compilation of legal rules and it is largely based on precedent, created by judicial decisions, which means that past rulings are taken into consideration when cases are decided (case law). It should be noted that today common law is also codified, i.e. in written form. This legal system is based on the judicial principle of ‘stare decisis’, that is on the binding aspect of the precedent. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge.

Civil Law, in contrast, is codified. It refers to a body of law based on written legal codes derived from fundamental normative principles. Legal disputes are settled by reference to this code, which has been arrived at through legislation. Judges are bound by the written law and its provisions. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code.

Legal and Technical Translations  |  Dott.ssa Antonia Tofalo  |  MCIL CL, AITI  
Court-Appointed Translator of the Court of Salerno, Italy – (n° 17/2004)
Roll of Translators and Interpreters at the Chamber of Commerce of Salerno, Italy – (n° 972)
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