We all think we know all the key things about the law from watching shows like Suits and How To Get Away With Murder but do you really know the law of you don’t know the difference between the common and civil law systems – two of the most commonly encountered legal systems in the world? Hopefully, by reading this article, you’ll develop a basic understanding of these systems and their importance in the world of the law.

History

Common Law:

The common law system has its origins in medieval England after the Norman Conquest 1066 in the Curia Regis which was essentially a single court for the country. Unlike modern common law, it was initially dependent more on the decisions of judges than the legislature for its advancements. At the time the common law was also critical in creating a centralised judiciary in the country, with royal judges going on what were essentially tours to towns and villages, spreading the dominance of Westminster’s common law over local customs.

There were also various key figures in the development of the common law, such as Sir Edward Coke, Sir Matthew Hale, and later Sir William Blackstone, whose Commentaries on the Laws of England systematised and spread English legal principles around the world.

Civil Law:

Civil law has its roots in Roman law, particularly the Corpus Juris Civilis compiled under Emperor Justinian in the 6th century. Unlike common law, which grew through case decisions, civil law is characterised by codification: comprehensive legal codes that aim to cover all possible scenarios. Over time, Roman law influenced continental Europe, with the Napoleonic Code of 1804 being one of the most famous and influential modern codifications. Civil law systems prioritise written statutes and codes over judicial precedent.

Key Components

Common Law:

• Judge-made law (precedent is binding through stare decisis).
• Case law plays as important a role as legislation.
• Flexible and adaptive, evolving as new cases arise.
• Trials are often adversarial, with judges acting as arbiters between competing parties.

Civil Law:

• Primarily based on written codes and statutes.
• Judges apply and interpret the code rather than create law.
• Emphasis on predictability and systematic organisation.
• Trials are more inquisitorial, with judges taking a more active role in investigating facts.

Country Examples

Common Law:

In the United Kingdom, common law still plays a central role alongside statutes passed by Parliament. Famous cases like Donoghue v Stevenson (1932) established the modern law of negligence, shaping how courts think about duty of care. Another landmark was R v R (1991), where the House of Lords ruled that marital rape was a crime, showing how judge-made law can adapt to modern values.

In the United States, the Constitution is the supreme law, but precedent is vital in interpreting it. For example, Brown v Board of Education (1954) ended racial segregation in schools, and Roe v Wade (1973) was a key case on abortion rights (later overturned in 2022). These cases show how judicial decisions in the US can have a wide social and political impact.

In Tanzania, the legal system is a blend of common law, customary law, and Islamic law. Common law influence comes from British colonial rule. Courts in Tanzania often rely on English case law where local legislation is silent. A well-known example is Attorney General v Lohay Akonaay (1994), a case which dealt with land rights and showed how precedent can help protect individual freedoms even within a mixed system.

Civil Law:

In France, the Napoleonic Code of 1804 is the foundation of its legal system. Judges do not create law through precedent but instead apply the code. A good illustration is the Jand’heur v Les Galeries Belfortaises case (1930), which established that liability in tort law did not depend on fault but could be automatic in certain situations, showing the centrality of written codes.

In Japan, civil law was heavily influenced by the German and French systems during the late 19th century. The Japanese Civil Code of 1896 is still the core of private law today. A notable example is the Minamata disease cases, where victims of mercury poisoning brought claims against corporations in the 1960s and 70s. Although handled under statute, these cases tested how judges interpret codified law in a modern industrial society.

In Bulgaria, civil law is rooted in continental European legal traditions, especially those of Germany. Its system is based on the Constitution, the Civil Code, and other statutes. A prominent case was the Kolevi v Bulgaria judgment in the European Court of Human Rights (2009), which criticised Bulgaria’s handling of a prosecutor’s murder and revealed weaknesses in judicial independence. This shows how civil law systems rely on structural codes but are also shaped by constitutional and human rights obligations.

So… which one’s better?

It is not really about one system being better than the other but about what each system prioritises. Common law countries like the UK, US, and Tanzania value flexibility. Their judges can adapt principles to new situations, making the system more responsive. Civil law countries like France, Japan, and Bulgaria value certainty and predictability, because citizens can turn to written codes to understand their rights and obligations.

In today’s world, the differences are narrowing. Common law countries often pass more legislation, while civil law countries are influenced by precedent in practice, even if it is not binding. Globalisation, international courts, and human rights law mean that both traditions increasingly borrow from each other. For anyone studying law, appreciating both systems gives you a better understanding of how justice is delivered around the world.

Reading Recommendation – The Rule of Law by Tom Bingham

The Rule of Law by Tom Bingham is a brilliant starting point if you want to understand why law matters in everyday life. Bingham, a former senior judge in the UK, explains the idea of the rule of law in a clear and down-to-earth way. He covers principles like fairness, equality before the law, and access to justice, and illustrates them with real examples from history and modern society.

It is not a heavy academic book but rather a thoughtful guide that shows how the rule of law protects us all, whether in a common law or civil law system. If you are curious about the foundations of legal systems or thinking about studying law in the future, this book is a must-read.

I found it a particularly accessible read and a great introduction to the law. His exploration of its history, such as Magna Carta and the Bill of Rights, for example, is a great starting point for understanding the law. Also, his focus on public law was something which I found particularly interesting and his integration of relevant cases undoubtedly helped emphasise this.

If you’re just curious about the rule of law, why not read our article on it?