Civil Law Vs Common Law

963 Words4 Pages
In a nutshell, legal tradition is the basis or historical root of a country’s legal system. There are two major legal traditions – the Common law and Civil law traditions. Each tradition has different source, concept, rule and development history. The adoptions of legal traditions in certain countries are largely affected by their historical background as well.
John Henry Merryman (as cited in O’Connor, 2012, p.8) defined “legal tradition” as “a set deep rooted, historically conditioned attitudes about the nature of law, about the role of law in the society…. about the proper organization and operation of a legal system, and about the way the law is or should be made, applied, studied, perfected and taught.” Merryman further differentiated
…show more content…
Before the Norman Conquest, different rules and customs applied in different regions of the country. But after 1066 monarchs began to unite both the country and its laws using the king’s court. Justices created a common law by drawing on customs across the country and rulings by monarchs. These rules developed organically and were rarely written down.
Through the colonization footprints, British introduced and applied Common law to the colonies. So, Common law tradition impacts most of the Commonwealth Countries’ current legal systems. United States, New Zealand, South Africa, Canada, Australia, Malaysia and Singapore are based on Common law tradition.
The Civil law tradition is the oldest and more widely used legal system but it took longer time to develop than the Common law. The Economist (2013) described the origin of Civil law tradition as follow:
European rulers drew on Roman law, and in particular a compilation of rules issued by the emperor Justinian in the 6th century that was rediscovered in 11th-century Italy. With the Enlightenment of the 18th century, rulers in various continental countries sought to produce comprehensive legal
…show more content…
As the time past, custom practices and common adoptions have become compulsory and have acquired the force of a law in respect to the place or subject matter to which it relates. This community-based social regulations and dispute resolutions practices are distinct from the western-style justice system (Black 's Law Dictionary Free Online Legal Dictionary (2nd edition), 1910; O’Connor, 2012).
As a result, despite Common law and Civil law are two major legal traditions in the world (Central Intelligence Agency, 2016), we shall not simply categorize a country as a Common law or Civil law country. We shall take note on their colonization history, besides aware of the existence of hybrid or mixed legal systems and legal pluralism in some countries. Under these situations, the Common law or Civil law could be regarded as a subsystem of the wider legal systems only.
The next section will focus on the comparative study for the advantages and disadvantages of Common law and Civil law with some cases or examples to support the
Open Document