Difference Between Common Law And Civil Law

The common law and civil law systems are the products of two on fundamentally distinctive ways to deal with the lawful procedure. In civil law, the important principles and rules are contained in codes and statutes, which are applied by the courts codes. Subsequently, codes and statutes prevail, while case law constitutes just an auxiliary (secondary) source of law. On the other hand, in the common law system, the law has been overwhelmingly made by judicial decisions, while a theoretical (conceptual) structure is frequently deficient. This distinction is the result of diverse role of legislator in civil law and common law. The civil law depends on the theory of separation of powers, whereby the part of legislator is to legislate, while the

A civil lawyer usually starts from a legitimate norm contained in legislation, and by method for derivation makes conclusions in regards to the real case. On the other hand, a lawyer in common law begins with the real case and contrasts it and the same or comparable legal issues that have been managed by courts in beforehand decided cases, and from these relevant precedents the binding lawful rule is determined by method for induction. A result of this fundamental difference between the two systems is that lawyers from the civil law nations have a tendency to be more calculated, while lawyers from the common law nations are thought to be more sober minded.

One of the main differences between the civil law and common law systems is the binding force of precedents. While the courts in the civil law system have as their main task deciding specific cases and interpreting legal norms, in the common law the courts are supposed to decide debate between specific parties as well as to give direction in the matter of how similar dispute ought to be settled later on. The interpretation of a legislation given by a court in particular case is binding on lower courts, so that under common law the court choices still make the premise for elucidation (interpretation) of

With respect to the resolution of legitimate issues, the civil law framework depends on the rule "jura novit curia" ("the Court should know the law"), which implies that there is no requirement for parties to plead the law. On the other hand, in common law the law must be pleaded, the points of reference for or against must be submitted and recognized.

The terms ' utilization "adversarial" and "inquisitorial" is deceiving (misleading) and can not help much in recognizing the genuine differences between the common law and civil law procedures, as these two terms could be utilized for both systems. In order to discover those differences the more proper way is to think about specific parts of common law and civil law procedures, for example, the method for determination of facts, service of records, rules on admission and weight of evidence, position of court experts, position of court specialists, standard of proof in civil and criminal