The majority of legal authors divide the legal systems in the world into two mains groups : the common law on the one hand and the civil law on the other hand . The most interesting is that when you try to find definitions for those words, you often find the basic definition and then as a conclusion you are told to distinguish the two systems. For instance, we can look at the definitions given by Britannica Encyclopedia for those two notions. Civil law is defined as "a body of law developed from Roman law and used in continental Europe and most former colonies of European nations, including the province of Quebec and the U.S. state of Louisiana... The basis of law in civil-law jurisdictions is statute, not custom; civil law is thus to be distinguished from common law." Then, common law is defined as "a body of law based on custom and general principles and that, embodied in case law, serves as precedent or is applied to situations not covered by statute. Common law has been administered in the courts of England since the Middle Ages; it is also found in the U.S. and in most of the British Commonwealth. It is distinguished from civil law." Since those two systems are both used in the European Union, it might be interesting to look at their differences concretely. So, here we will focus on the main differences between civil and common law as define above. We will concentrate our discussion on the civil and common law as used on the European continent. Rather than focusing on each differences which will lead us to a descriptive listing, we will adopt an evolutive approach. Thus, we will look at the historical background of each systems and how it has influence their actuals characteristics (I). Then, we will focus on the main difference between civil and common law, that is to say the legal thinking, notwithstanding the fact that they always have the same purpose : regulate and harmonize the human activity . (II)
[...] We are here at the heart of the differences between civil and common law. Indeed, due to history, the development of the two systems has been really different. This poses great difficulties for a continental jurist to understand the common law system and vice versa. For instance, there is no distinction between and “private” law in English law. Whereas this distinction is a natural one for a French civilian. Opposite, there is no such thing as the word in French. [...]
[...] Thus, we will look at the historical background of each systems and how it has influence their actuals characteristics Then, we will focus on the main difference between civil and common law, that is to say the legal thinking, notwithstanding the fact that they always have the same purpose : regulate and harmonize the human activity[4]. From a different historical background to a different legal thinking “Common law comes from the court, continental law from the study”[5]. This quotation is really interesting since it reveals the heart of the distinction between the two legal systems. [...]
[...] The difference between civil-law judges and common-law judges has been well described by Lord Cooper, an eminent Scottish judge familiar with both the Common and the Civil Law : A civilian system differs from a common law system much as rationalism differs from empiricism or deduction from induction. The civilian naturally reasons from principles to instances, the common lawyer from instances to principles. The civilian puts his faith in syllogisms, the common lawyer in precedents; the first silently asking himself as each new problems arises, “What should we do this and the second asking aloud in the same situation, “What did we do last Lord Cooper's view is the most spread and lead to the conclusion that civil and common law judges have two totally different way of approaching a case. [...]
[...] Conclusion Commom and civil law systems don't have the same legal thinking. As we saw above, their approach of legal concepts, legal education, decision making, role of judges and so on, are different. We also prove that this was closely linked to a different historical background. But when comes the time to conclude, will we say that one system is better than the other? When it comes to look at the effectiveness of the two systems, it appears that in different way, they both attend the same goal. [...]
[...] Dainow when he writes about this family of “people who say that there no longer exists any real difference between the civil law and the common law by reason of the parallel developments that have taken place in order to satisfy the same societal needs in general conditions which are similar - the differences which remain being only matters of degree rather than nature”[20]. But the debate is still open http://www.acca.com/acce/05/cm/501.pdf http://www.britannica.com/ebc/article-9360866 http://www.britannica.com/ebc/article-9361245 J. Dainow, The Civil Law and the Common Law : some points of comparison, The American journal of comparative law Vol.15 K. [...]
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