Key Differences Between The Civil and The Common Law Legal Systems.

Kamil Abdu Oumer

[email protected]

Wollo University school of law

The common law and civil law legal systems are the two most prevalent legal systems in
the world. The two systems grew in different historical contexts. The civil law developed
from the Roman Law through the Justinian's codifications to the codifications in Western
Europe particularly France and Germany.1 The common law, on the other hand, emerged
from the decisions of the King’s Courts in the England Feudal System.2 Currently, the
major differences between the two systems are the sources of laws, the structure of the
courts and the role justice actors, particularly, judges and lawyers play in the system.

In the common law legal system, the main source of the law are judge made laws. Even if
there are statutes that complement them, the primary sources of the law are case laws.3
The law is to be framed when a dispute arises and the rules of the law are usually
generalized out of judicial decisions.4 This is what we call precedent system. The
precedent system is binding and the rule of stare decisis obliges the lower courts to abide
by the decisions given by the upper courts.5 In the common law, the role of legal scholars
in the development of the law is also relatively minimal as judges are the primary factors
behind the making and development of the law.6 In addition, equity is usually considered
as a source of law.7In Britain and most states of the united states, case laws are the major
sources of the law.

In the civil law legal system, on the other hand, parliamentary legislations are the main
sources of the law.8 There are pre-enacted general legal rules incorporated in legislation
which shall apply to all disputes. The major part of legal rules are also incorporated in
comprehensive codes. 9 In addition, customs and the opinion of scholars also have a
greater role in the application of laws. Unlike the common law system, however, judges,

1
Dainow, Joseph(1967).The Civil Law and the Common Law: Some Points of Comparison. The American
Journal of Comparative Law, 15(. 3), 419-435, p.420
2
(Dainow, 1967) , p.422
3
Algero, G. Mary(2005). The Sources of Law and the Value of Precedent: A Comparative and Empirical
Study of a Civil Law State in a Common Law Nation. Louisiana Law Review, 65(2), 776-822, p. 784
4
(Dainow, 1967), p. 425
5
Pejovic, Caslav (2001). Civil law and common law: two different paths leading to the same goal.
Victoria University of Wellington Law Review 32, 817-842, p.820
6
Rene’ David and John E. C. Brierley, Major Legal Systems in the World Today, New
York (1978), p. 137.
7
Apple, G. James & Deyling, P. Robert(). A Primer on the Civil-Law System, p.36
8
(Pejovic, 2001), p. 820
9
(Dainow, 1967), p.421

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in principle, have the role of only interpreting the law. Ethiopia, for example,
Predominantly follows the civil law legal system. There are the Civil Code, Commercial
Code, Maritime Code, Criminal Code, Civil Procedure Code, Criminal Procedure Code,
Labour Code and many other legislations on different topics. But, Ethiopia also adopt
some sort of a precedent system. The legal interpretation rendered by the Federal
Supreme Court cassation division with five judges binds all courts in the country.10

Despite the above differences, it should be noted, however, that there are statutes in
common law systems and the judges in civil law countries may make laws in the form of
interpretation and gab filling.11 With the objective of insuring certainty and stability, civil
law judges are also adopting case laws as soft laws. 12

The second difference is on the structure of courts. Civil law courts make a distinction
between public & private laws and have specified courts for specific matters.13The
specialization of the courts help to benefit from experts and accommodate local
customs.14 While private law matters are dealt by ordinary courts, there are specific
courts for public law disputes like administrative courts, constitutional courts, criminal
courts. In Ethiopia, there are separate benches for criminal, labor, commercial and family
cases. In addition, there are independent administrative courts and labor dispute board.
In the common law, on the other hand, courts have usually a generalized jurisdiction. In
the united states, for example, they are unified courts in which there is one appellate court
and a supreme court. 15

The third significant difference of the two systems is the roles justice actors, particularly,
lawyers and judges play in the judicial proceedings. Whereas the common law is known
for its adversarial system, the civil law is known for inquisitorial system. In the common
law, lawyers use whatever permissible means to establish their claim and/or disprove the
facts of the adversary. The judges are relatively passive. In addition, in the American
system, there is a party controlled fact finding procedure called discovery. During
discovery, parties are required to disclose facts and evidences including those needed by
the adversary.16 Further, there is a jury system in which lay men are chosen to establish
facts in a dispute. In common law countries in general and the United States in

10
A Proclamation To Re-amend The Federal Courts Proclamation Number 25/1996 as amended by
Proclamation No. 454/2005, Article 10 Sub-Article 4
11
(Dainow, 1967), p. 427
12
Fon, Vincy & Parisi, Francesco (2006) Judicial precedents in civil law systems: A dynamic analysis.
International Review of Law and Economics 26, 519–535, p. 522
13
Koch, Jr, H. Charles (2004). The Advantages of the Civil Law Judicial Design as the Model for
Emerging Legal Systems. Indiana Journal of Global Legal Studies 11(1) , p. 149
14
(Koch, 2004), p. 150
15
O’Connor, Vivienne (2002). Common Law and Civil Law Traditions. International Network to promote
the Rule of law, p. 17.
16
Konstantinos D. Kerameus (1987). A Civilian Lawyer Looks at Common Law Procedure. Louisiana
Law Review 47(3), 492-509, p. 497

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particular, trial by jury has become a constitutional right.17 In the civil law, judicial
control of dispute resolution is the principle.18 The judges have considerable role in
establishing the fact by inquiring parties and/or their lawyers as well as witnesses. 19 In
Ethiopia, for example, the court has every right to examine parties and their witnesses
any time it wills.20 But, there are increasing trends in which the common law judges and
civil law advocates are becoming more active in court proceedings.21

17
(Konstantinos 1987), p.502.
18
(Koch, 2004), p. 152.
19
Hazard, Geoffrey C. Jr. & Dondi, Angelo (2006) Responsibilities of Judges and Advocates in Civil and
Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits. University of Pennsylvania
Law School, faculty scholarship paper 1094,p. 61
20
See for example articles 241, 264, 272, etc of the Civil procedure Code of Ethiopia, decree No.52/1965
21
(Hazard, & Dondi, 2006),p. 62

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Bibliography

Algero, G. Mary (2005). The Sources of Law and the Value of Precedent: A Comparative
and Empirical Study of a Civil Law State in a Common Law Nation. Louisiana
Law Review, 65(2), 776-822.

Dainow, Joseph (1967).The Civil Law and the Common Law: Some Points of
Comparison. The American Journal of Comparative Law 15(. 3), 419-435.

Fon, Vincy & Parisi, Francesco (2006). Judicial precedents in civil law systems: A
dynamic analysis. International Review of Law and Economics 26, 519–535.

Giorgetti, Chiara (2014). The Arbitral Tribunal: Selection and Replacement of

Arbitrators. A Practitioner's Guide 143-172.

Hazard, Geoffrey C. Jr. & Dondi, Angelo (2006). Responsibilities of Judges and
Advocates in Civil and Common Law: Some Lingering Misconceptions
Concerning Civil Lawsuits. University of Pennsylvania Law School, faculty
scholarship paper, 1094.

Koch, Jr, H. Charles (2004). The Advantages of the Civil Law Judicial Design as the
Model for Emerging Legal Systems. Indiana Journal of Global Legal Studies
11(1).

Konstantinos D. Kerameus (1987). A Civilian Lawyer Looks at Common Law

Procedure. Louisiana Law Review 47(3), 492-509.

Legal Update Archive, 01,12, 2010. http://arbitration.practicallaw.com/2-504-0957

O’Connor, Vivienne (2002). Common Law and Civil Law Traditions. International
Network to promote the Rule of law.

Pejovic, Caslav (2001). Civil law and common law: two different paths leading to the
same goal. Victoria University of Wellington Law Review 32, 817-842.

Electronic copy available at: https://ssrn.com/abstract=3129755