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COMMON LAW AND CIVIL LAW SYSTEMS



The two principal legal systems in the world today are those of civil law and common law. Continental Europe, Latin America, most of Africa and many Central European and Asian nations are part of the civil law system; the United States, along with England and other countries, once part of the British Empire, belong to the common law system.

The civil law system has its roots in ancient Roman law, updated in the 6th century A.D. by the Emperor Justinian and adapted in later times by French and German jurists.

The common law system began developing in England almost a millennium ago.

After the American Revolution, English common law was enthusiastically embraced by the newly independent American states. In the more than 200 years since that time, the common law in America has seen many changes – economic, political and social.

How does America's common law system compare with that of civil law?

"Judge-made" Law

Historically, much law in the American common law system has been created by judicial decisions, especially in such important areas as the law of property, contracts and torts – what in civil law countries would be known as "private delicts". Civil law countries, in contrast, have adopted comprehensive civil codes covering such topics as persons, things, obligations and inheritance, as well as penal codes, codes of procedure and codes covering such matters as commercial law.

But it would be incorrect to say that common law is unwritten law. The judicial decisions that have interpreted the law have, in fact, been written and have always been accessible. From the earliest times there has been "legislation", what in civil law systems would be called "enacted law". In the United States, this includes constitu­tions (both federal and state), as well as enactments by Congress and state legislatures.

In addition, at both the federal and state levels, much law has, in fact, been codified. At the federal level, for example, there is an internal revenue code. State legislatures have adopted uniform codes in such areas as penal and commercial law. There are also uniform rules of civil and criminal procedure which, although typically adopted by the highest courts of the federal and state systems, are ultimately ratified by the legislatures. Still, it must be noted that many statutes and rules simply codify the results reached by common or "case" law. Judicial decisions interpreting constitutions and legislative enactments also become sources of the law themselves, so, in the end, the basic perception that the American system is one of judge-made law remains valid.

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