CIVIL-LAW AND COMMON LAW TRADITION: A
COMPARATIVE APROACH
Civil law primarily contrasted against common law. The significant
difference is that, historically, common law was developed by
custom whereas civil law was developed by legal principles and the
interpretation of doctrinal writings rather than application of facts to
legal fictions. 'Common-law is extremely decentralized in terms of
the source of law (making place for evolving cultural changes) is
highly centralized in its administration because of the weight of
precedent. On the other hand, the civil-law which is centralized in
its source leaves from for a great deal of ad hoc interpretation.'
(Crump M.W.& Kahalas H. 1975). Therefore the civil-law is by its
nature more capable than the common-law and more adaptable to
changing situations.
The Other distinction between the common law and civil law
systems is that the role of precedent has tended to become less
significant. Common law courts have developed skills in
distinguishing earlier judgments of which they disapprove and civil
law system, precedents have a value.
Map of the countries with anglosaxon legal systems...
2008_12_13_commons_panel_05
2008_12_13_commons_panel_03Civil law countries try to
ensure that there is some certainty in the law and the same issue
will be decided in the same way. Civil law tradition prevents its
judges from establishing broad principles of law in the absence of
legislation. But in the common law system there is open possibility
for the same case.
'In civil law countries, legislation is seen as the primary source of
law. Thus, courts base their judgements on the provisions of codes
and statutes, from which solutions in particular cases are to be
derived.' (MacQueenH.L. 2000) By contrast, in the common law
system, cases are the primary sources of law, while statutes are
only seen as incursions into the common law and thus interpreted
narrowly.
Furthermore, separation of powers is differently in civil law...