On Common Law and Civil Law traditions

1. Common Law Systems
Key facts to understand how the UK legal system works
Copyright 2013
Jesús Lorenzo Vieites

2. Common law legal systems are ones in which
the importance of law formed through court
decisions is central, as opposed to law formed
through statutes or written legislation.
Common law systems are
founded on the theory that
similar cases should receive
similar treatment under the
law.

3. Common Law Systems and Civil Law
Traditions:
Describe two distinct legal systems.
England & Wales follow the Common Law system
The common law refers to the substantive
law and procedural rules that have been
created by the judiciary through the
decisions in the cases they have heard.
Common Law is judge-made & case-centred

4. The common law tradition emerged in
England during the Middle Ages. It was to
be applied within British colonies across
continents since then.
The establishment of judicial
decisions lies behind the
basis of common law.
Common Law is uncodified

5. Common law is (generally) uncodified,
which means that there is no
comprehensive compilation of legal rules
and statutes.
Common law just relies on some scattered
statutes –which are legislative decisions–
and it is largely based on precedent, ie, all
those judicial decisions that have already
been made in similar cases

6. Precedents are kept over time through the
records of the UK courts nationwide as well
as historically documented in collections of
case law (i.e. yearbooks and reports)
The judge is the key person in any judicial
decision as he has to base his decision on
(historically) established precedents
So, judges moderate between opposing parties
in front of a jury composed of ordinary people
which decides on the facts of the case. And
judges determine the appropriate sentences
based on the jury’s verdict.

7. Civil Law Traditions
Civil law tradition, however, developed in
the continent and was also applied in all
those colonies pertaining to the different
countries of Europe of the time. Yet,
legislative decisions –as opposed to judicial
ones– lie behind the basis of a civil law
tradition.
Civil Law is book-based, codified

8. In countries where Civil law is established, a
fully comprehensive and continuously
updated legal codes are the norm.
By way of these codes, all matters capable
of being brought to court, applicable
procedure, adequate sentences, etc are
diligently specified.
Judges just have to look into the
legislation relevant to the issue to try
and resolve a judicial question

9. 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.
A civil law system is a codified body of
general abstract principles which control
the exercise of judicial discretion
Thence, a judge has necessarily to work
within a framework established by a
codified set of laws.

10. English Common Law:
A Historical view
It was the result of changing and centralizing
powers of the medieval kings
After the Norman Conquest new institutions of
royal authority and justice were established.
Accordingly, new forms of legal action set by the
Crown developed through a system of writs
(royal orders)
A writ provided a specific remedy for a specific wrong.

11. English Common Law:
A Historical view
But, the system was deemed to be so highly
formalized that the laws the courts could apply
based on the writ system were often too rigid to
achieve justice.
As a result, other means to achieve an
adequate justice were a must, and further
appeal to justice was made directly to the
king, establishing in this way the court of
equity (or Court of Chancery, as it was the
court of the king’s chancellor)

12. English Common Law:
A Historical view
Courts of equity were authorized to apply
principles of equity based on many sources rather
than to apply only the common law, to achieve a
just outcome.
Courts of law and courts of equity thus
functioned separately until the writs
system was abolished in the
mid-nineteenth century.

13. English Common Law:
A Historical view
In the Middle Ages, common law in England
coexisted with other systems of law (as civil law
did in other countries).
In this regard, Church courts applied canon law,
urban/rural courts applied local customary law,
Chancery and maritime courts applied Roman law.
But it was in the XVIIth cent. that Parliament
established the pre-eminence of the Common Law
system over any other laws.

14. Civil Law: A Historical view
The Roman Empire is the cradle of the ius civile or
law applicable to all Roman citizens.
Civil law has its origins in the monumental
compilation of Roman law ordered by Justinian in
the VIth cent.
A newly rediscovered compilation in the Xith
century in Italy made the basis for the XVIth
century corpus known as the Corpus iuris civilis.

15. Civil Law: A Historical view
Nearly most European countries adopted and
adapted this Corpus to their particular needs.
Medieval scholars of Catholic church law (canon
law) were influenced by Roman law scholarship as
they compiled existing religious legal sources into
their own comprehensive system of law and
governance for the Church.
Consequence: Canon and Civil laws were taught
at most universities during the late Middle Ages.

16. Civil Law: A Historical view
Such a powerful combination of bodies of law
were quintessential for the development of legal
thought tradition common to most of Europe.
The medieval civil law tradition based on Roman
law was thus integral to European legal
development.
It offered a store of legal principles and rules
invested with the authority of ancient Rome and
centuries of distinguished jurists.

17. We have to bear in mind that, in spite of the fact that the UK English system is
referred to as a common law system, and having regard to the role that courts
play in the interpretation of statutes, LEGISLATION is the prevalent method of
law-making nowadays.
Copyright 2013
Jesús Lorenzo Vieites