Introduction
The essay has focused on the divisions or contrast between the common law and civil law legal systems while indicating the most crucial differences between the two systems. Some countries do apply more weight to some law sources than others while others do put more focus on the judicial decision compared to others. There are two main types of legal systems that are applied in the world which includes civil law and common law. The legal system comprises of the procedures, rules, and institutions where the private endeavours and public initiatives can be undertaken via legitimate means. The legal system is therefore referred as the system utilized in interpretation and enforcement of laws while elaborating responsibilities and rights in diversified ways. Basis of the jurisdiction in law application usually consists of an oral or written constitution, laws, statutes, and primary legislation (3) traditional practices which are upheld by courts among others. Most people have knowledge about the legal system in countries where they live and the importance therein is acknowledged. Through the legal systems, it is possible for people in a community to possess a social obligation to people around them in order to embrace a safe environment while assisting in making everyone secure. People have responsibility of abiding by the rules and laws in a community but the enforcement is left in the criminal justice system custody. By examining the main types of legal systems, key differences between the two, and the significant role they play in the community or country, it is clear that civil and common law have key contrasts in existence and application.
Legal Systems
Civil Law Legal System
Countries that follow the civil law system are the ones that were formerly protectorates, Portuguese colonies, Spanish, German, Dutch, or French. Most of eastern and central European and countries in East Asia also do follow the civil law structure. Civil law is considered as a codified law system and do originate from Roman law. Civil law is considered to be more prescriptive than other legal systems including common law. However, a government is obliged to make consideration unto whether specific legislation could be required to either control the certain restriction scope in order to allow effective infrastructure project or maybe specific legislation could be required for a sector. There are several provisions that are usually implied in a contract in regard to the civil law system. Less emphasis is placed on the presentation of all the terms laid out in governing the association between contract parties within the contract as ambiguities or inadequacies can be resolved or remedied by operation of the civil law (Pejovic 2001, p.7). This in practice could be the reason why the civil law contracts could be shorter than those set out in the common law countries. In civil law, certain infrastructure forms are described by legal concepts that are well defined in the specific jurisdictions. The purpose of civil law is therefore to settle any legal disputes arising between corporations and Parties of people, or parties of people. Thus when people are wronged by others they are entitled to legal action against them. Civil law legal systems have continued up to date legal codes which have specifications of all the issues or matters that have the capability of being brought into a court, the procedure applicable and the punishment considered appropriate for any outlined offence. Under civil law, the judges have the responsibility of establishing the facts in a case and the application of the applicable code provisions. The judge in civil law has the responsibility of bringing the formal charges, matter investigation, and making decisions on each case (Graff 2008, p.71). However, the judge must work within the established framework by a codified comprehensive set of laws.
Features of Civil Law Legal System
One main feature of this legal system is that under the civil law system, there is a written constitution that is based on specific codes including constitutional law, tax law, administrative law, corporate law codes, and civil codes. Those codes enshrine the basic duties and rights but the administrative law is considered to be less codified and the administrative judges do behave more similarly to the common law judges. Another key feature clear under the civil law legal system is that only legislative enactment is found to be binding for all. The little scope is available for judges made law in commercial, criminal, and civil courts though in practice there is the tendency of judges to follow judicial decisions made previously. There is the possibility of administrative and constitutional courts nullifying regulations and laws and the decisions they make in such cases are considered binding for all. Next feature of civil law system is that in some systems adopted in some countries like Germany, the legal scholar’s writings have key influence on courts. This only applies to certain countries or jurisdictions not for all countries using civil law systems. Another feature under the civil law system is that courts are usually specific to the fundamental codes (Graff 2008, p.80). This therefore means that there is separate civil court, administrative court, and constitutional court systems that do opine on the consistency of the administrative and legislative act with the specific code and interpretation therein. Lastly there is essence of less freedom of contract. This means that numerous provisions do gain implication into contract by law and therefore the parties to a contract cannot contract out from the underlying provisions. These features give right to this division of the legal systems adopted in different jurisdiction of the world (Graff 2008, p.70).
Common-Law Legal System
The common law system is defined or referred to as the body of legal rules set out by judges in the process of issuing rulings on cases rather than laws and rules made in official statutes or by the legislature. An example of a rule that judges have made in the past is the one that states out that people owe a duty to read contracts. The common law legal system is applied to countries that formerly were the British protectorates or colonies with the United States included. Common law has less of prescription compared to other legal systems like civil law and therefore a government would prefer to enshrine citizen protection in regard to some specific legislation with relation to infrastructure programs. For example, common law could possibly prohibit any service provider or dealer not to cut off electricity or water on poor payers or documents in relation to the respective transaction are required to be disclosed based on the freedom of information Act (Hathaway 2000, p.601). Also could also be the requirement to make implications to a contract for equity in bargaining provision where a party to a contract could be stronger in terms of bargaining than the second party. It is important that all terms relating to a contract, to govern the parties therein, are set out in the contract itself since there are few provisions that are implied into a contract based on the common law legal system. This is the main reason why contracts in the common law system are longer than those made under the civil law or in civil law country. The common law main distinct feature is that it’s generally uncodified thus there is no full compilation of statutes and legal rules. The common law does mainly rely on the judicial decisions that have ruled out in similar cases though some scattered statutes are also relied upon. The previous judicial decisions usually referred to as the precedent is maintained through court records over time. Judges are therefore considered as having a major role in shaping British and American law. The common law, therefore, acts as an adversarial system, where a contest exists between two parties that are opposing before a moderating judge. The facts of the cases are made decided by a jury of people without respective legal training. The judge then utilizes the jury’s verdict in the determination of the appropriate sentence on each case. In general, the common law legal system is usually based on the judicial precedent concept and the court decisions act as the precedent in cases brought to court in the future. The judges under the common law system have the obligation of using precedents emanating from previous court cases to interpret laws made by legislators in order to be able to apply them to any individual cases. In some countries that use common law, courts usually have the ability to strike down legislators’ laws that are considered unconstitutionally in violation of the laid down federal law (Holmes 2009).
Features of Common Law
One of the main features of the common law system is that the codified laws or the constitution is not always written. The law can be applied without the written key documents. This is different from other legal systems. The second feature of the common law is that judicial decisions are considered binding and therefore the high court decisions can only be generally overturned through legislation or by the same court (Yingfeng 2006, p.2). The next key feature about the common law legal system is that the freedom of contract is extensive and thus there are few provisions that are implied into a contract by law. However, there is an exception where there exist provisions meant for private consumers’ protection which could be implied by law. Finally, there is general permission in anything else that is expressly not prohibited by law (Hathaway 2000, p.601).
Crucial Differences
Constitution
Constitution is referred to as the body of established precedents or fundamental principles to which a country or other organization is governed. The common law system does not require a written constitution but the civil law system has a written constitution (Pejovic 2001, p.7).
Judicial decisions
Judicial decisions made in past court cases are binding under the common law system. Under the common law system, judicial decisions are not considered binding on third parties. However, there is an exception when it comes to constitutional and administrative court regulations which are binding on all (Graff 2008, p.75).
Writing of legal scholars
Under the common law system, the writing of the legal scholars usually have little influence in the application of law. In the civil law legal system, the writings of legal scholars have significant influence in a number of civil law jurisdictions (Graff 2008, p.72).
Freedom of contract
In common law legal system, freedom of contract is extensive and the contractual relationships only have few provisions that are implied by law. In the civil law system, the freedom of contract is more limited thus the contract between parties has a number of provisions that are implied by law (Pejovic 2001, p.7).
Court system that is applicable to PPP projects
In common law system, most of the cases have contractual relationships subjected to the courts dealing with the issues or the private law. In civil law, numerous PPP arrangements are usually subject to public administrative law and relate to public law (Merryman and Pérez-Perdomo 2020).
Conclusion
In conclusion, there are remarkable differences between the common law legal system and the civil law legal system. There are five major differences which revolve around the features like written constitution where one upholds while the other does not, judicial decisions wherein it’s binding in common law and not binding on the third party under civil law, writing f civil scholars wherein common law it has little influence while in civil law it has significant influence, freedom of contract which is extensive in common law legal system and more limited in the civil law system, and finally the court’s system application to PPP projects where the two systems have differences in terms of where its subject. The two systems are not applied in all jurisdictions or in all countries worldwide. There could be some slight amendments on the original system when being applied in different jurisdictions but the features between the two systems have distinct differences.
Reference List
Holmes, O.W., 2009. The common law. Harvard University Press.
Merryman, J.H. and Pérez-Perdomo, R., 2020. The civil law tradition. Stanford University Press.
Plucknett, T.F.T., 2001. A concise history of the common law. The Lawbook Exchange, Ltd..
