University Goce Delchev Shtip

Faculty of Law Department of Judicial law

Essay in English language:
Contrasting Civil law and Common law
Supervisor: Candidate:
Ph.D Biljana Ivanovska Anastaija !o"eva
B.A. !rste Iliev #ile n$. %&'()'
Shtip* +a"edonia
C,-.E-.
Introduction!"
#istorical Development of $ivil Law!!!%
#istorical Development of $ommon Law!!!&
$ivil Law influences in 'merican Law!(
$ivil Law and $ommon Law compared) *+otion of $ivil Law,!!!!-
*+otion of $ommon Law,!!.
$ommon Law v! $ivil Law!/
0approchement of $ivil Law and $ommon Law12311
4oday le5al systems are 6ecomin5 more mi7ed!18
$onclusion!1"
0eferences!1%
2
I-./,D0C.I,-
9ost nations today follow one of two ma:or le5al traditions) common law or civil law!
4he common law tradition emer5ed in ;n5land durin5 the 9iddle '5es and was
applied within <ritish colonies across continents! 4he civil law tradition developed in
continental ;urope at the same time and was applied in the colonies of ;uropean
imperial powers such as Spain and =ortu5al! $ivil law was also adopted in the
nineteenth and twentieth centuries 6y countries formerly possessin5 distinctive le5al
traditions> such as 0ussia and Japan> that sou5ht to reform their le5al systems in
order to 5ain economic and political power compara6le to that of ?estern ;uropean
nation3states!
4o an 'merican familiar with the terminolo5y and process of our le5al system> which
is 6ased on ;n5lish common law> civil law systems can 6e unfamiliar and confusin5!
;ven thou5h ;n5land had many profound cultural ties to the rest of ;urope in the
9iddle '5es> its le5al tradition developed differently from that of the continent for a
num6er of historical reasons> and one of the most fundamental ways in which they
diver5ed was in the esta6lishment of :udicial decisions as the 6asis of common law
and le5islative decisions as the 6asis of civil law! <efore loo@in5 at the history> letAs
e7amine 6riefly what this means!
Common law is 5enerally uncodified! 4his means that there is no comprehensive
compilation of le5al rules and statutes! ?hile common law does rely on some
scattered statutes> which are le5islative decisions> it is lar5ely 6ased on precedent>
meanin5 the :udicial decisions that have already 6een made in similar cases! 4hese
precedents are maintained over time throu5h the records of the courts as well as
historically documented in collections of case law @nown as year6oo@s and reports!
4he precedents to 6e applied in the decision of each new case are determined 6y
the presidin5 :ud5e! 's a result> :ud5es have an enormous role in shapin5 'merican
and <ritish law! $ommon law functions as an adversarial system> a contest 6etween
two opposin5 parties 6efore a :ud5e who moderates! ' :ury of ordinary people
without le5al trainin5 decides on the facts of the case! 4he :ud5e then determines the
appropriate sentence 6ased on the :uryAs verdict!
Civil Law> in contrast> is codified! $ountries with civil law systems have
comprehensive> continuously updated le5al codes that specify all matters capa6le of
6ein5 6rou5ht 6efore a court> the applica6le procedure> and the appropriate
punishment for each offense! Such codes distin5uish 6etween different cate5ories of
law) su6stantive law esta6lishes which acts are su6:ect to criminal or civil
prosecution> procedural law esta6lishes how to determine whether a particular action
constitutes a criminal act> and penal law esta6lishes the appropriate penalty! In a
civil law system> the :ud5eAs role is to esta6lish the facts of the case and to apply the
provisions of the applica6le code! 4hou5h the :ud5e often 6rin5s the formal char5es>
investi5ates the matter> and decides on the case> he or she wor@s within a
framewor@ esta6lished 6y a comprehensive> codified set of laws! 4he :ud5eAs
decision is conseBuently less crucial in shapin5 civil law than the decisions of
le5islators and le5al scholars who draft and interpret the codes!
3
1IS.,/ICA2 DE3E2,P+E-. ,4 CI3I2 2A5
4he term civil law derives from the Latin ius civile> the law applica6le to all
0oman cives or citiCens! Its ori5ins and model are to 6e found in the monumental
compilation of 0oman law commissioned 6y the ;mperor Justinian in the si7th
century $;! ?hile this compilation was lost to the ?est within decades of its
creation> it was rediscovered and made the 6asis for le5al instruction in eleventh3
century Italy and in the si7teenth century came to 6e @nown as Corpus iuris civilis!
Succeedin5 5enerations of le5al scholars throu5hout ;urope adapted the principles
of ancient 0oman law in the Corpus iuris civilis to contemporary needs! 9edieval
scholars of $atholic church law> or canon law> were also influenced 6y 0oman law
scholarship as they compiled e7istin5 reli5ious le5al sources into their own
comprehensive system of law and 5overnance for the $hurch> an institution central
to medieval culture> politics> and hi5her learnin5! <y the late 9iddle '5es> these two
laws> civil and canon> were tau5ht at most universities and formed the 6asis of a
shared 6ody of le5al thou5ht common to most of ;urope! 4he 6irth and evolution of
the medieval civil law tradition 6ased on 0oman law was thus inte5ral to ;uropean
le5al development! It offered a store of le5al principles and rules invested with the
authority of ancient 0ome and centuries of distin5uished :urists> and it held out the
possi6ility of a comprehensive le5al code providin5 su6stantive and procedural law
for all situations!
's civil law came into practice throu5hout ;urope> the role of local custom as a
source of law 6ecame increasin5ly importantDparticularly as 5rowin5 ;uropean
states sou5ht to unify and or5aniCe their individual le5al systems! 4hrou5hout the
early modern period> this desire 5enerated scholarly attempts to systematiCe
scattered> disparate le5al provisions and local customary laws and 6rin5 them into
harmony with rational principles of civil law and natural law! ;m6lematic of these
attempts is the Dutch :urist #u5o GrotiusA 1("1 wor@> Introduction to Dutch
Jurisprudence> which synthesiCed 0oman law and Dutch customary law into a
cohesive whole! In the ei5hteenth century> the reformin5 aspirations of
;nli5htenment rulers ali5ned with :uristsA desire to rationaliCe the law to produce
comprehensive> systematic le5al codes includin5 'ustriaAs 1-.( Code of Joseph
II and Complete Civil Code of 1811> =russiaAs Complete Territorial Code of 1794>
and FranceAs Civil Code *@nown as the Napoleonic Code, of 1.2%! Such codes>
shaped 6y the 0oman law tradition> are the models of todayAs civil law systems.
4
1IS.,/ICA2 DE3E2,P+E-. ,4 C,++,- 2A5
;n5lish common law emer5ed from the chan5in5 and centraliCin5 powers of the @in5
durin5 the 9iddle '5es! 'fter the +orman $onBuest in 12((> medieval @in5s 6e5an
to consolidate power and esta6lish new institutions of royal authority and :ustice!
+ew forms of le5al action esta6lished 6y the crown functioned throu5h a system
of writs> or royal orders> each of which provided a specific remedy for a specific
wron5! 4he system of writs 6ecame so hi5hly formaliCed that the laws the courts
could apply 6ased on this system often were too ri5id to adeBuately achieve :ustice!
In these cases> a further appeal to :ustice would have to 6e made directly to the @in5!
4his difficulty 5ave 6irth to a new @ind of court> the court of equit> also @nown as the
court of $hancery 6ecause it was the court of the @in5As chancellor! $ourts of eBuity
were authoriCed to apply principles of eBuity 6ased on many sources *such as
0oman law and natural law, rather than to apply only the common law> to achieve a
:ust outcome!
$ourts of law and courts of eBuity thus functioned separately until the writs system
was a6olished in the mid3nineteenth century! ;ven today> however> some U!S! states
maintain separate courts of eBuity! Li@ewise> certain @inds of writs> such as warrants
and su6poenas> still e7ist in the modern practice of common law! 'n e7ample is the
writ of ha!eas corpus> which protects the individual from unlawful detention!
Eri5inally an order from the @in5 o6tained 6y a prisoner or on his 6ehalf> a writ
of ha!eas corpus summoned the prisoner to court to determine whether he was
6ein5 detained under lawful authority! "a!eas corpus developed durin5 the same
period that produced the 181& #a$na Carta> or Great $harter> which declared
certain individual li6erties> one of the most famous 6ein5 that a freeman could not 6e
imprisoned or punished without the :ud5ment of his peers under the law of the landD
thus esta6lishin5 the ri5ht to a :ury trial!
In the 9iddle '5es> common law in ;n5land coe7isted> as civil law did in other
countries> with other systems of law! $hurch courts applied canon law> ur6an and
rural courts applied local customary law> $hancery and maritime courts applied
0oman law! Enly in the seventeenth century did common law triumph over the other
laws> when =arliament esta6lished a permanent chec@ on the power of the ;n5lish
@in5 and claimed the ri5ht to define the common law and declare other laws
su6sidiary to it! 4his evolution of a national le5al culture in ;n5land was
contemporaneous with the development of national le5al systems in civil law
countries durin5 the early modern period! <ut where le5al humanists and
;nli5htenment scholars on the continent loo@ed to shared civil law tradition as well
as national le5islation and custom> ;n5lish :urists of this era too@ 5reat pride in the
uniBueness of ;n5lish le5al customs and institutions!
4hat pride> perhaps mi7ed with envy inspired 6y the contemporary ;uropean
movement toward codification> resulted in the first systematic> analytic treatise on
;n5lish common law) ?illiam <lac@stoneAs *1-8"31-.2, Commentaries on the %aws
of &n$land! In 'merican law> <lac@stoneAs wor@ now functions as the definitive
source for common law precedents prior to the e7istence of the United States!
5
CI3I2 2A5 I-420E-CES I- A+E/ICA- 2A5
4he 'merican le5al system remains firmly within the common law tradition 6rou5ht to
the +orth 'merican colonies from ;n5land! Fet traces of the civil law tradition and its
importance in the hemisphere may6e found within state le5al traditions across the
United States! 9ost prominent is the e7ample of Louisiana> where state law is 6ased
on civil law as a result of LouisianaAs history as a French and Spanish territory prior
to its purchase from France in 1.2"! 9any of the southwestern states reflect traces
of civil law influence in their state constitutions and codes from their early le5al
herita5e as territories of colonial Spain and 9e7ico! $alifornia> for instance> has a
state civil code or5aniCed into sections that echo traditional 0oman civil law
cate5ories pertainin5 to persons> thin5s> and actionsG yet the law contained within
$aliforniaAs code is mostly common law!
'nd while <lac@stone prevails as the principal source for pre3'merican precedent in
the law> it is interestin5 to note that there is still room for the influence of 0oman civil
law in 'merican le5al tradition! 4he foundin5 fathers and their contemporaries
educated in the law @new not only the wor@ of ;n5lish :urists such as <lac@stone> 6ut
also the wor@ of the 5reat civil law :urists and theorists! 4homas Jefferson> for
e7ample> owned several editions of JustinianAs Institutes> and praised the first
'merican translated edition from 1.18> with its notes and annotations on the
parallels with ;n5lish law> for its usefulness to 'merican lawyers! Indeed> a famous
e7ample of its use is the 1.2& case of 'ierson v( 'ost> in which a +ew For@ :ud5e>
decidin5 on a case that involved a property dispute 6etween two hunters over a fo7>
cited a 0oman law principle on the nature and possession of wild animals from
theInstitutes as the precedent for his decision! 4oday 'ierson v( 'ost is often one of
the first property law cases tau5ht to 'merican law students! )nited *tates v(
+o!!ins> a 1/8& $alifornia case that went to the Supreme $ourt and paved the way
for the stateAs modern community property laws> was 6ased upon a concept of
community property that $alifornia inherited not from ;n5lish common law 6ut from
le5al customs of Hisi5othic Spain that dated to the fifth century $;! $ases such as
these illuminate the rich history that unites and divides the civil and common law
traditions and are a fascinatin5 reminder of the ancient ori5ins of modern law!
6
CI3I2 2A5 A-D C,++,- 2A5 C,+PA/ED
Notion of Civil Law
$ivil law has its ori5in in 0oman law> as codified in the $orpus Iuris $ivilis of
Justinian! Under this influence> in the ensuin5 period the civil law has 6een
developed in $ontinental ;urope and in many other parts of the world! 4he main
feature of civil law is that it is contained in civil codes> which are descri6ed as a
Isystematic> authoritative> and 5uidin5 statute of 6road covera5e> 6reathin5 the spirit
of reform and mar@in5 a new start in the le5al life of an entire nation!I 9ost civil
codes were adopted in the nineteenth and twentieth centuries) French $ode $ivil>
1.2%> 'ustrian <ur5erliches GesetC6uch> 1.11> German <ur5erliches GesetC6uch>
1./(> Japanese 9inpo> 1./(> Swiss Jivil5esetC6uch> 1/2-> Italian $odice $ivile>
1/%8! <etween these codes there are some important differences> and they are often
5rouped in the 0omanic and the Germanic families! ;ven thou5h the civil codes of
different countries are not homo5enous> there are certain features of all civil codes
which 6ind them to5ether and Isets them apart from those who practice under
different systemsI!
$ivil law is lar5ely classified and structured and contains a 5reat num6er of 5eneral
rules and principles> often lac@in5 details! Ene of the 6asic characteristics of the civil
law is that the courts main tas@ is to apply and interpret the law contained in a code>
or a statute to case facts! 4he assumption is that the code re5ulates all cases that
could occur in practice> and when certain cases are not re5ulated 6y the code> the
courts should apply some of the 5eneral principles used to fill the 5aps!
7
Notion of Common Law
$ommon law evolved in ;n5land since around the 11
th
century and was later
adopted in the US'> $anada> 'ustralia> +ew Jealand and other countries of the
<ritish $ommonwealth! 4he most o6vious distinction 6etween civil law and common
law systems is a that civil law system is a codified system> whereas the common law
is not created 6y means of le5islation 6ut is 6ased mainly on case law! 4he principle
is that earlier :udicial decisions> usually of the hi5her courts> made in a similar case>
should 6e followed in the su6seBuent cases> i!e! that precedents should 6e
respected! 4his principle is @nown as stare decisis and has never 6een le5islated 6ut
is re5arded as 6indin5 6y the courts> which can even decide to modify it! 4he claim
that common law is created 6y the case law is only partly true> as the common law is
6ased in lar5e part on statutes> which the :ud5es are supposed to apply and interpret
in much the same way as the :ud5es in civil law *e5 the Sale of Goods 'ct 1/-/> the
Uniform $ommercial $ode,!
8
Common 2aw v. Civil 2aw
'part from these features> there are a num6er of institutions associated with the
common law system not usually found in civil law systems! =rincipal amon5 these is
the :ury which> at the option of the liti5ants> functions in 6oth civil and criminal cases!
4he :ury is a 5roup of citiCens> traditionally 18 in num6er> summoned at random to
determine the facts in a lawsuit! ?hen a trial 6y :ury is held> the :ud5e will instruct the
:ury on the law> 6ut it remains for the :ury to decide the facts! 4his means
thatordinary citiCens will decide which party will prevail in a civil case> and whether>
in a criminal case> the accused is 5uilty or innocent of the char5e a5ainst him or her!
4he institution of the :ury has had an important shapin5 effect on the common law!
<ecause :urors are 6rou5ht in on a temporary 6asis to resolve factual issues>
common law trials are usually concentrated events> sometimes only a matter of days
*althou5h occasionally possi6ly wee@s or months in duration,! ;mphasis is on the
oral testimony of witnesses> althou5h documents also are presented as evidence!
Lawyers have responsi6ility for preparin5 the caseG the trial :ud5e performs no
investi5ation of the case prior to trial! Lawyers> actin5 as adversaries> ta@e the lead
in Buestionin5 the witnesses at trial> while the :ud5e acts essentially as a referee!
4estimony is recorded ver6atim 6y a court reporter or electronically! 4he trial court>
which is the Icourt of first instanceI *i!e!> where the case is first heard, in the
'merican system> is where the factual record of the case is made! Generally
spea@in5> appeals courts confine their review of the lower court record to errors of
law> not of fact! +o new evidence is received on appeal! 'll this stands in mar@ed
contrast to what is usually found in civil law systems> where :ury trials are for the
most part un@nown! In a 5iven case> instead of a sin5le continuous trial> a series of
court hearin5s may 6e held over an e7tended period! Documents play a more
important role than witness testimony! 4he :ud5e actively investi5ates the case and
also conducts the Buestionin5 of the witnesses! Instead of a ver6atim record of the
proceedin5s> the :ud5eKs notes and findin5s of fact comprise the record! 'ppeals
may 6e ta@en 6oth on the facts and the law> and the appeals court can and>
sometimes does open the record to receive new evidence! Despite their differences>
6oth the common and civil law systems have as their 5oal the :ust> speedy and
ine7pensive determination of disputes! U!S! courts have 6ecome particularly
sensitive in recent years for the need to continuously reappraise their processes in
order to improve the Buality of :ustice! 's a conseBuence of these efforts> there are
many other aspects of court activity in the U!S! 4hese ran5e from alternate dispute
resolution mechanisms *includin5 ar6itration and mediation, to such procedural
devices as default and summary :ud5ment> used 6y :ud5es to decide cases at an
early sta5e without havin5 to proceed to a formal trial!
9
/APP/,C1E+E-. ,4 CI3I2 2A5 A-D C,++,- 2A5
Durin5 the period of national codification many diver5ent le5al systems were
esta6lished> which proved to 6e an o6stacle to the world economic inte5ration! Since
the end of 1/
th
and the 6e5innin5 of 82
th
century started the process of unification
and harmoniCation of law> especially in the fields of international private and pu6lic
law! 4he 5rowin5 5lo6alisation of the world economy> 6ased on closer inte5ration
and cooperation amon5 states> imposed a need for le5al certainty and unification of
law> so that an eventual dispute could 6e solved in the same way re5ardless of what
court decides it and what law applies to it! 4his process involved reducin5
differences 6etween various le5al systems and an approachin5 6etween common
law and civil law le5al systems! 's an illustration of this rapprochement> ;n5lish law
has introduced contracts for 6enefit of third parties 6y adoptin5 the $ontracts *0i5hts
of 4hird =arties, 'ct 1///> while the Japanese $ode $ivil =rocedural provides for
possi6ility of direct e7amination and cross3e7amination of witnesses!
4he 6indin5 force of precedents> as one of the main distinctive features of common
law> is not so uniBue to the common law as it may seem> 6ecause of the actual
influence the case law has on the courts in all le5al systems! In some civil law
countries the decisions of supreme courts have 6een made 6indin5 6y statute! ;ven
in the countries where the decisions of hi5her courts are not formally 6indin5> they
are li@ely to 6e followed 6y lower courts! En the other hand> the ri5idity of the stare
decisis doctrine has 6een softened 6y a num6er of chan5es in the common law
countries> includin5 the famous =ractice Statement 6y the #ouse of Lords> which
declared that it considered itself no lon5er formally 6ound 6y its own precedents!
?hether courts are 6ound or not 6y precedents> :ud5es in all le5al systems are
aware that the need of reasona6le certainty and predicta6ility reBuires that li@e cases
6e treated ali@e! #ence> in contemporary civil law the role of :ud5es in the creation of
law is increasin5ly important> while the difference 6etween civil law and common law
courts shows a tendency of disappearin5> or at least loo@in5 less si5nificant! 4he
presence or a6sence of a formal doctrine of stare decisis does not have crucial
importance and it may 6e e7pected that differences 6etween the common law and
civil law systems in this area will diminish over time!
En the other hand> lar5e sections of common law have 6een re5ulated 6y statutes
and even codes *e5 the U$$,! 4his proliferation of statute law in the common law
system has narrowed the courtKs power of interpretation! 9odern common law courts
also tend to 5ive 5reater wei5ht to the pro6lem of individualised :ustice in the
particular case instead of tryin5 to provide 5uidance for the future! 4his tendency
ma@es the role of common law courts similar to that played 6y the civil law courts!
'n important step towards 6rin5in5 to5ether the civil law and the common law has
6een made throu5h adoptin5 international treaties> conventions and uniform rules
containin5 elements of 6oth the civil law and the common law! Such an e7ample is
10
the 1/.2 Hienna Sales $onvention> which was adopted 6y 6oth the civil law and the
common law countries! 4he U+ID0EI4 =rinciples for International $ommercial
$ontracts represent another attempt at 6rid5in5 differences 6etween the civil law and
the common law! Differently from the Hienna $onvention> the U+ID0EI4 =rinciples
are not intended to 6ecome 6indin5 law> 6ut they are aimed to serve as a model to
national le5islators and to provide 5uidance to courts and ar6itrators when
interpretin5 e7istin5 uniform law and decidin5 disputes relatin5 to international
commercial contracts! 's result of the attempts to reconcile differences 6etween the
civil law and the common law> the Hienna $onvention and U+ID0EI4 =rinciples
contain some identical provisions! 4he 8222 I+$E4;09S provides an additional set
of rules which uniformly re5ulates the transfer of ris@ and costs in contracts of sale>
thus avoidin5 inconveniences which may arise from differences 6etween the civil law
and the common law! 4here are similar e7amples in other fields of law> li@e
international carria5e of 5oods> international payments> international commercial
ar6itration!
4he creation of ;uropean Union *;U, law has 5reatly contri6uted to the process of
rapprochement 6etween common law and civil law! 4he ;U has 6rou5ht to5ether
different le5al systems under a sin5le le5islature> especially after 1/-"> when the UL
and Ireland :oined the ;U! 4he mem6ership of these common law countries> in
addition to all other civil law countries opened the way for conver5ence within the ;U
of common law and civil law elements and creation of a common le5al framewor@!
#ence> the ;U le5al system represents a mi7ed system which contains elements of
6oth civil law and common law systems!
4he ;U has 6een very active in adoptin5 a 5reat num6er of re5ulations and
directives which have precedence over national laws! 4hese le5islation of ;U often
incorporate elements specific for either civil law or common law! 4here are several
e7amples of common law elements incorporated in the ;U law> li@e the concept of
true and fair view in accountin5 law! 4he ;uropean =arliament has adopted several
resolutions callin5 for unification of private law> especially in the areas relevant to the
development of common mar@et! 'lso> the $ommission on ;uropean $ontract Law
*the Lando $ommission, has prepared the =rinciples of ;uropean $ontract Law>
which attempt to reconcile the differences 6etween the civil law and the common
law! 4hese =rinciples presently have the status of Ksoft lawK> 6ut they may 6e the
forerunner of a ;uropean $ivil $ode which would 5reatly contri6ute to the further
conver5ence of civil law and common law!
.,DA6 2E7A2 S6S.E+S A/E BEC,+I-7 +,/E +I8ED
11
=u6lic law today is a mi7ed systemM> civilian in ori5in> enriched 6y common law
principles and innovations> and with true cross3fertilisation ta@in5 place! In the UL
this has led> apart from individual principles enterin5 UL law> to the e7pansion of
:udicial review and to the chan5in5 role of the courts! 'mon5 the common law
innovations> one could mention corporate 5overnance which has influenced 6oth
German and ;$ laws> leadin5 to a mar@et3driven conver5ence> and the law of
professional privile5eM and the ri5ht to 6e heardM> 6oth e7ported to the ;$J! '5ain
under <ritish influence> the continental emphasis on the privile5es of the
administration underta@in5 pu6lic services is movin5 towards stressin5 individual
ri5hts> and yet the protection of the individual under a human ri5hts framewor@ in the
UL sprin5s from a continental understandin5! In the UL> the #uman 0i5hts 'ct 1//.>
democracy> ma:ority rule and the notion of limited 5overnment are now fundamental
areas of study> a study undou6tedly influenced 6y continental thin@in5> as is the
principle of KproportionalityK to 6e predominantly employed in the area of human
ri5hts! 9ost important cross3fertilisations and transpositions ta@e place at the level of
6asic ideas! 4his does not in itself create mi7ed le5al systems> 6ut an area of law
could 6ecome a mi7ed system in this way! Lord Irvine *when Ld $hancellor,
o6served) K4hrou5h these processes of cross3fertilisation we 6e5in to see the
emer5ence of common principles of ;uropean pu6lic law which> in turn> help to
ensure that all ;uropean citiCens 6enefit from certain 6ench3mar@ standards as they
interact with national and transnational pu6lic 6odies! ! ! ! Eur constitutional
landscape is chan5in5> and administrative law in <ritain and ;urope are 5rowin5
closer to5ether!K
C,-C20SI,-
12
4he e7amination of common law and civil law reveals that there are more similarities
than differences 6etween these two le5al systems! Despite very different le5al
cultures> processes> and institutions> common law and civil law have displayed a
remar@a6le conver5ence in their treatment of most le5al issues!
Under the contemporary pressure of 5lo6alisation> modern civil law and common law
systems show several si5ns of conver5ence! 9any of the differences that used to
e7ist 6etween the civil law and common law systems are now much less visi6le due
to the chan5es which have occurred 6oth in common law and civil law! In the
common law> re5ulatory law has achieved a 5reater importance leavin5 less room for
the courts> while in the civil law the role of the courts in the creation of law has
5reatly increased! 's a result of these processes 5oin5 to opposite directions> many
of the differences 6etween common law and civil law loo@ now more li@e nuances
rather than ma:or differences!
4he differences which e7ist 6etween civil law and common law should not 6e
e7a55erated! It is also important to note that differences on many issues e7ist 6oth
amon5 civil law and amon5 common law countries! 4he differences 6etween civil law
and common law systems are more in styles of ar5umentation and methodolo5y
than in the content of le5al norms! <y usin5 different means> 6oth civil law and
common law are aimed at the same 5oal and similar results are often o6tained 6y
different reasonin5! 4he fact that common law and civil law> despite the use of
different means arrive at the same or similar solutions is not surprisin5> as the
su6:ect3matter of the le5al re5ulation and the 6asic values in 6oth le5al systems are
more or less the same! ?hile a certain rapprochement 6etween civil law and
common law systems is evident and this tendency will continue> there are still
important differences which will continue to e7ist for an indefinite period! 4his paper
has 5iven several e7amples of these differences 6etween the common law and civil
law systems! 'n awareness of these differences is necessary for any lawyer dealin5
in international law! 4he differences in some areas are su6stantial and the parties
contemplatin5 startin5 proceedin5s in another le5al system are advised to chec@
those differences 6efore ta@in5 action!
4he aim of this paper was not to :ud5e which le5al system is 6etter) civil law or
common law! 4he tas@ of lawyers should not 6e to defend their le5al systems> 6ut to
improve them! ;ach le5al system may have some advanta5es and deficiencies! If a
forei5n le5al system has some advanta5es> why not incorporate them in the
domestic le5al systemN In that way the resultin5 conver5ence of the two le5al
systems can only contri6ute to their common 5oal of creatin5 a fair and :ust le5a
system which can provide le5al certainty and protection to all citiCens and le5al
persons!
/E4E/E-CES
13
L Jwei5ert O # LotC> Introduction To Comparative %aw *" ed> $larendon
=ress> E7ford 1//.,G 0 < Schlesin5er et al> $omparative %aw *9ineola> +ew
For@> 1//.,> J # 9erryman> The Civil %aw Tradition, -n Introduction to the
%e$al *stems of .estern &urope and %atin -merica *8
nd
ed Stanford
University =ress> 1/.&,G 9 ' Glendon et al> Comparative %e$al Traditions
*?est =u6lishin5 $o> 1//%,
0 Jimmermann ISavi5nyKs Le5acy Le5al #istory> $omparative Law> and the
;mer5ence of a ;uropean Le5al ScienceI LP0 &.2 *1//(,!
http)QQen!wi@ipedia!or5Qwi@iQ$ivilRlawR*commonRlaw,
14