The difference between a system of civil law and common law is often not appreciated by

those outside the legal profession. For the most part, knowing the difference between
these legal systems is not relevant to our daily lives.
However, understanding how our laws are developed and enforced always has a
relevance to the bigger picture of our society, for if we understand this, we understand
how the laws we live by are made.
Part of the problem is that explaining the difference between a civil law system and a
system of common law is not exactly easy. I remember a couple of years back when I
was asked whether Singapore has a civil law or common law system I tried to discern
the difference from Wikipedia, and came away stumped.
In a sense, the meaning of "common law" should be obvious from phrases such as
"common law wife" this is law which exists by unwritten convention, not written
statutes.
Meanwhile, a civil law system develops through an existing legislative process. This is a
system followed by most countries around the world, especially in Europe, and so we can
see a very neat contrast between the United Kingdom and its European neighbours.
The common law system is predominant throughout the Commonwealth of Nations,
thanks to their shared British heritage. Most former British colonies derive their laws
from the same common law as England (the common law is actually a thoroughly English
creature the Scots and Irish were not subject to this system).
Now, you might be scratching your head at this point, because virtually all former British
colonies, and even Britain herself, have legislative bodies. Don't these legislatures make
written laws?
Well, yes, they do. However, the old body of common law continues to coexist with
written law (although the written civil law does override the common law when they
come in conflict).
Moreover, the body of common law continues to develop. Common law develops from the
judgments handed down by the judiciary. The English legal system (and thus the legal
systems of most of its former colonies) is marked by a very strict following of judicial
precedent.
This principle, known in Latin as stare decisis, means that the courts follow the
judgments of courts above them in the hierarchy. They can deviate from these
judgments creatively by distinguishing a particular situation, but otherwise, they have to
follow precedent.
This of course confers quite a few benefits. I've touched on one of them before
the flexibility offered by the common law in wedge cases or grey areas. This flexibility is
not easy to achieve under a civil law system, as only the legislature can modify the law if
the law is unjust.
But at the same time, the common law is markedly inflexible. It is difficult to update

common law to change with the times. For example, it was established in the early 19th
century by Adams v Lindsellthat an offer to make a contract takes effect the moment its
acceptance is posted not received.
This judgment, which was creatively used to correct the uniquely unjust situation of
the Adamscase, does not make much logic to the ears of the ordinary man nor should
it.
Similarly, another tenet of contract law according to the common law is that there must
be consideration provided for any contract I need to provide something for you to
provide something else to me (a typical quid pro quo deal) unless the contract is written.
The problem is that in the case of unwritten contracts which should be enforced, there
are times when the courts have had to lay down ridiculous judgments, declaring that, for
example, a peppercorn counts as consideration.
With the development of the principle that a binding contract should have the intention
to create legal relations in the early 20th century, the idea of consideration no longer has
much use and yet it remains.
Why? Because the courts are notorious for finding it difficult to retreat from the body of
legal tradition which already exists. The legislature could act to change the law as the
legislative bodies of some former British colonies have done but Parliamentarians are
not known for caring about these obscure but nevertheless important details.
In a civil system, on the other hand, once a law has proven to be bad, it is amended or
repealed. Because only the legislature can provide recourse in such a situation, there is
no need to get one's hands dirty and file a lawsuit, hoping that it will reach the highest
court of the land, and the judges here will be radical enough to depart from precedent.
Clearly, the common and civil law systems both have their advantages and
disadvantages. Having been exposed to the common law system for much of my life, I
must say I prefer it to a purely civil law system because of the flexibility that judicial
precedent and statutory interpretation can offer judges.
Oh, and as for Singapore? I'm still not sure, but as far as I can ascertain, it operates
under a common law system, and until a few decades ago, it was possible to appeal to
the English Privy Council in a Singaporean case.