5

I am trying to get a better understanding of differences between common law and civil law legal systems. Here is what I was able to find online:

  1. in common law there is the idea of a precedent, while in civil law not

  2. in common law a judge plays a role of a person evidence at a court is provided to, while in civil law a judge tries to investigate too in addition

  3. distance between public law and private law is smaller in common law legal system

Are these three points correct? What are other differences between common law and civil law legal systems?

(if necessary it is possible to simplify it to USA vs EU)

Thank you.

3
  • I am fairly sure that this was asked before, but can't find it on top of my head. That's not a bad thing.
    – Trish
    Mar 23, 2023 at 13:28
  • 1
    Could you explain what you mean by "Person of evidence" and all of #3?
    – hszmv
    Mar 23, 2023 at 13:33
  • 1
    Is #3 perhaps a reference to Dicey's critique of French administrative law? His concept of the rule of law included that, in England, the same courts and principles that are used in ordinary disputes, also apply to disputes that individuals have with the state.
    – alexg
    Mar 23, 2023 at 14:42

2 Answers 2

6

if necessary it is possible to simplify it to USA vs EU

The European Union is by no means a homogeneous area of law. I will assume because it is the one I am most familiar with, but bear in mind that much of what follows might not apply to Spain/Germany/etc.

The USA is a federal state. In particular, Louisiana law is heavily influenced by civil law for historical reasons. Other states and federal law do, however, follow more or less the same general principles.

in common law there is the idea of a precedent, while in civil law not

The first part is true. Common law usually hold the principle of stare decisis according to which precedents are binding. That means that the holding of a court binds the same court to rule the same way on similar matters raised later. I would note, however, that courts can be... let’s say "creative"... in finding ways to differentiate the case at hand from the previous one, when the judge is motivated to do so.

The latter part is false, or at least, exaggerated. It is true that courts in civil law are not bound by previous holdings; an appeal that raises as its only argument "the court’s decision in my case was different from that in another case without offering any differentiation" would be rejected. However, there is the concept of jurisprudence constante where repeated precedent is highly persuasive. In practice, even simple precedent is persuasive.

Furthermore, lower courts are bound by the holdings of higher courts, both in civil law and common law jurisdictions. (That’s more or less the meaning of "higher court".)

in common law a judge plays a role of a person evidence at a court is provided to, while in civil law a judge tries to investigate too in addition

That is a distinction between the inquisitorial and adversarial systems. The distinction does not exactly map to the civil/common law systems, but in practice the criminal part of civil law systems is often inquisitorial whereas common law systems are often adversarial.

I will first note that the "inquisitorial" part where the judge conducts investigations is vastly overblown. That only occurs in complex cases that require extended investigations with more coercitive powers (for instance seizing documents etc.) Wikipedia says:

In 2005, there were 1.1 million criminal rulings in France, while only 33,000 new cases were investigated by judges.[5] The vast majority of cases are therefore investigated directly by law enforcement agencies under the supervision of [the equivalent of district attorneys].

The numbers sound plausible to me, but here’s the ref it gives if you want to check (which I did not bother to do).

The most visible part of the distinction is the way witnesses at trial are handled. In an adversarial system, the parties will ask to cite certain witnesses. There are pre-trial motions to exclude certain witnesses for certain reasons, but parties have a wide latitude of which witnesses they want to call. Each witness will come labelled as to which party asked for its appearance.

At trial, the witness will be asked questions by the party who called them (direct examination), which will usually take a long time and include nondisputed background information (who are you, for how long have you worked with the defendant, etc.). Then, the opposing party will ask questions (cross-examination), emphasizing points that cast doubt on the witness’s reliability (because they are lying, because they do not remember well, etc.) or on the other parties’ narrative (highlighting details that were conveniently "missed" in direct examination).

In an inquisitorial system, witnesses are chosen by the judge. Parties can ask to have witnesses added to the list, but the list does not come with labels that X is coming from the prosecution, Y from the defense.

When a witness is called, the judge will ask most of the questions at the start, before giving the floor to the parties. Roughly speaking, the judge does the direct examination, and parties do a cross-examination afterwards. Note that in many cases the parties will ask few or no questions - high-profile cases that you read about in the media are abnormal in that respect.

In particular, an inquisitorial-system court maintains a list of expert witnesses, which are called when technical points are required. That expert is paid by the court, not by the parties (however, when one party requests an expertise and the other party opposes it, the requesting party has to pay the cost upfront - they will shift it to the other party if they win the case). That is very different to the adversarial system of having each party introduce testimony by an expert they commissioned and paid.

distance between public law and private law is smaller in common law legal system

I am not sure I understand that question.

It is true that "private" (tort) law operates in an adversarial system both in civil-law and common-law. Therefore, one could argue that the distance between civil-law’s criminal system (inquisitorial) and tort system (adversarial) is higher than between common-law’s criminal and tort systems (both adversarial).

However, that is in my view a highly artificial distinction. The distance between practice areas within a single (common law or civil law) jurisdiction is large in any case. You would not want a lawyer specialized in drug-dealing cases to take your case about sexual harassment or unlawful dismissal, and vice-versa, in any jurisdiction.

4
  • I think at least in Germany a civil case (e.g concerning compensation) may be suspended until the criminal case concerning the same action is decided, and then be decided according to the criminal outcome. Cases like OJ Simpson who was found non guilty in the criminal case but sentenced to compensation for the same deed in the civil case are at least unusual (and frankly weird). Mar 23, 2023 at 23:15
  • Here is a quote from Wikipedia entry for term law: "The scope of law can be divided into two domains. Public law concerns government and society, including constitutional law, administrative law, and criminal law. Private law deals with legal disputes between individuals and/or organisations in areas such as contracts, property, torts/delicts and commercial law.[18]>>This distinction is stronger in civil law countries<<, particularly those with a separate system of administrative courts;[19][20] by contrast, the public-private law divide is less pronounced in common law jurisdictions.[21][22]"
    – Jankoo
    Mar 24, 2023 at 8:22
  • @Peter-ReinstateMonica correct. In France, it’s the same trial (same judge, during the same proceedings) deciding both criminal liability and compensation, with three parties (prosecution, defense, and "partie civile"). Feel free to add an answer (mine is already long enough).
    – KFK
    Mar 24, 2023 at 9:34
  • @Jankoo I am afraid there is no shortcut here. Go fetch the law review articles referenced in the Wikipedia article, read them, and decide for yourself if they justify Wikipedia’s wording.
    – KFK
    Mar 24, 2023 at 9:44
1

Here are six select differences between the systems which is hardly comprehensive.

1. Taking of evidence, finality, and scope of appeal.

In common law systems, evidence is usually taken in a consolidated single trial, after which a decision on the merits of the case is made. There are fairly strict rules of evidence regarding what can be considered.

The factual determinations made at that trial are final. No new evidence can be received on appeal and generally speaking an appellate court can't second guess interpretation of the evidence presented (such as credibility determinations) made in the trial court on appeal. There is, however, a verbatim record of what happened in the trial court for an appellate court to review.

In civil law systems, evidence is usually taken piecemeal over multiple hearings at which only a small number of the total number of witnesses in a case are presented. There are fairly loose rules of evidence. Detailed notes are taken of evidentiary hearings by the judge(s), but a verbatim record of the trial court proceedings is usually not taken.

On a first direct appeal of a first instance court decision, the appellate court can review both legal and factual determinations made in the first instance court and can receive new evidence in a partial trial de novo of the case.

2. Decision-maker.

In the U.S., in a very large share of civil cases and in all criminal cases, there is a right to trial by jury. This right is actually exercised in the vast majority of serious criminal cases and personal injury cases and fraud cases, and in a large share of less serious criminal cases and breach of contract cases.

In most other common law legal systems, jury trials are available in civil cases only in a handful of exceptional circumstances that probably make up less than 1% of civil cases, and in serious criminal cases.

In a jury trial, a single judge presides of pre-trial proceedings, and orchestrates the jury trial itself such as overseeing jury selection, ruling on evidence objections, and instructing the jury prior to its deliberations regarding the applicable law. The jury's verdict is generally only the bottom line result with no explanation and the means by which it came to its conclusion are secret.

In civil law systems, all civil cases and all or all but the most serious criminal cases are decided by judges only. Minor criminal offenses and civil cases with a small amount in controversy are heard by a single judge and appealed to a panel of three more senior judges. More serious criminal offenses and civil cases with higher stakes are heard by a three judge panel and appealed to a panel of five more senior judges. There are some variations from country to country, but often an extremely serious criminal offense will be heard in the first instance by a mixed panel of three senior judges and significantly more "lay judges" who are a bit like jurors, or by a panel of five senior judges. In some countries extremely weighty civil cases are heard in the first instance by a panel of five senior judges. In civil law systems, there is often a second level of appeal that like a common law appeal only considers the law and does not receive new evidence.

In the U.S., judges are generally in a second career after a successful career as a lawyer (often as a prosecutor but not exclusively), and are usually politically connected and tend to be very politically aware. Higher level judicial posts are frequently filled by people who have not previously held lower level judicial posts.

In the U.K. and in civil law countries, judges generally choose that career early on in their working life, and progress up the ranks from lower courts to higher courts as civil servants.

3. Contempt of Court.

In a common law system, a judge has contempt of court power. One part of this power is the power to summarily, without a trial, punish people who in the court's presence disrupt its proceedings or show disrespect to the court with a fine and/or incarceration. Another part of this power is to fine or incarcerate someone who is not complying with a court order, either by fining and/or incarcerating them until they comply, or by issuing a fixed fine and/or period of incarceration for violating it (e.g. when compliance is no longer possible).

This power is used to give judges broad power to issue injunctive relief, i.e. to order them to do something or refrain from doing something.

In civil law systems, judges don't have broad contempt of court power. Misconduct in court is dealt with through the criminal justice system just like any other setting. Injunctive relief power in civil law systems is more limited.

4. Judicial Review.

In the U.S., all judges have the right and the obligation to rule on the constitutionality of laws and government action in cases tried before them. (This is not the case in the U.K.)

In most civil law systems, constitutional violations can only be raised in a separate constitutional court.

5. Sources Of Law.

In common law countries, most of the core principles of private law are determined through interpretation of case law precedents with no statutory foundation. Case law precedents are also pivotal in interpreting other sources of law like statutes and a constitution.

In civil law countries, the core principles of all areas of law are codified in statutes, and the role of precedents in interpreting them is smaller.

6. Public law.

In common law systems, the judges who handle cases involving public law disputes between private persons and the government, and between governmental entities are predominantly handled by ordinary senior judges who also handle serious civil and criminal cases.

In civil law systems, public law cases are usually handled in a separate legal system (which is one of the factors that make their ordinary courts less political) and ordinary judges have little or no authority over governmental officials in their official capacity outside criminal cases.

For example, in France, if you have a dispute with the government, you fill out a simple form available at your local convenience store and send it to the Council of State. It assigns senior public law lawyers to both you and the state and they litigate the matter in a very different procedure than ordinary courts. The Council of State, if it identifies a systemic problem will insist that the agency reform itself not just in the case identified but in all cases arising from the systemic problem.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .