Civil law is a legal system primarily used in Europe, originating from Roman law. The codification of Roman law promoted the enforcement of this legal framework, specifically because it preserved the ideal of a logically consistent set of principles and rules. Afterwards, the most important event in the history of modern European law was the enactment of Napoleon’s Code Civil in 1804.
Due to an early establishment of the central power, common law made it possible to replace the local customary laws by the common custom of the King’s Courts. Common Law originated in England, so it never allowed Roman law to actually be enforced as legal practice.
In Civil law, codes and statutes are drawn from philosophy, therefore being designed to cover all eventualities. Past judgements are no more than loose guides for the judge.
In Common law, jurisprudence is the most important source of law. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision. But if the court finds the current dispute to be fundamentally different from all previous cases, judges have the authority and duty to make law by creating legal precedents. This way, the new court decision becomes legal precedent and will binding for future trials.
2) Role of the judge
Under Civil law, judges are often described as “investigators.” They are responsible to decide on a case according to the truth in the matter. The judge decides both fact and law because there is no jury with such responsibility. It is assumed that the truth of the matter will be revealed by relevant evidence. He or she is in charge of eliciting relevant evidence, all bound by existing leges (laws).
Under Common law, judges have an active role in developing rules, because future decisions are bound by their rulings. Some of this judicial responsibility is delegated to the jury, which is responsible primarily about the facts of the case, while the judge determines the law. The jury also determines the final verdict in the case. It usually plays a vital role in criminal law, aiming to promote not only a healthy criminal justice system, but also a healthy society, where political leaders cannot abuse the criminal justice system to silence their opponents. The judge has to “referee” the legal debate of lawyers, having somewhat greater flexibility than in a civil law system to carry out the hearing and issue a decision in the case.
3) The lawyers’ prerogatives
In Civil law courts, lawyers must assist the judge in fulfilling their judicial responsibility. They are supposed to provide comments and suggestions to the judge, although they have no power of decision in the case themselves.
In Common law courts, lawyers must present their case to the judge (and jury, if applicable) and examine witnesses themselves. In these cases, lawyers stand before the court and attempt to be persuasive about the facts and law applicable in the case, while maintaining an active role in the legal proceedings.
Legal Intern R&R Partners