Even though legal systems around the world vary greatly, the two legal systems- common law and civil law are the most widely accepted and used systems. Some consider these to be very contrasting and not capable of co-existing whereas others are of the opinion that the two systems are way more compatible than they appear to be.
Common law is also known as uncodified law i.e., there are no written statutes and legal rules to refer to and comprehend.[1] It is mainly based on precedents that are maintained over a period of time through records and also historically documented through a collection of case law known are yearbooks and reports.[2] It emerged in England during the Middle Ages and mainly due to colonization spread to the British colonies throughout the continent.[3]
Civil law system has been developed through the interaction of three fundamental sources- Roman Law as transmitted through the sixteenth-century codification of Emperor Justinian; Germanic customary law; and the canon law of the Church, which in a way was a product of roman law however developed as a distinct system.[4] It is a system of codified law, the primary source is the law source, a record of interrelated articles, statues, and provisions.
Margaret Fordham in one of her works points out that despite the unavoidable differences in statutes, the influence of the judges, importance of precedents, etc. present in both the systems, they may operate side by side and a peaceful co-existence is possible, she has particularly given the example of Asia owing to its diversity. [5] A common law lawyer may appreciate civil law procedure and vice versa with increasing exposure to the other system and time.[6] Another example of this may be seen in Canada with the introduction of the Federal Law-Civil Law Harmonization Act[7], No. 1 in the house of commons in 1998.[8] This shows that despite the differences, co-existence and mutual dependence of these two systems are very much possible in every part of the world.
Vassilios Skouris, a judge in the court of the European Union explores differences between the two systems focused mainly on the powers of the judges and the weightage of their personal opinions in both the systems in his podcasts.[9]
Therefore, despite the various differences and similarities they can co-exist and function together.
[1] Troy Segal, Law & Regulations-Common Law, Investopedia (last visited Sept. 21, 2020, 6:37 PM) https://www.investopedia.com/terms/c/common-law.asp.
[2] Id.
[3] Lloyd M. Robbins, The Common Law and Civil Law Traditions, Robbins Collect. Univ. California, Berkeley, Sch. Law (1952) at 3.
[4] George Mousourakis, Roman Laws and the Origin of the Civil Law Traditions, 287-308 (1 ed. 2015).
[5] Margaret Fordham, Comparative Legal Traditions– Introducing theCommon Law to Civil Lawyers in Asia, 1 Asian J. Comp. Law 1–5 (2007).
[6] Id. pp<<1-5>>
[7] Federal Law-Civil Law Harmonization Act, No. 1, S.C. C.4 (2001)
[8] W. Tetley, Mixed jurisdictions: Common Law vs Civil Law (codified and uncodified) (Part II), 4 Unif. Law Rev. – Rev. droit Unif. 678-738, 722 (1999).
[9] Vassilios Skouris, Judging: A Common Law or Civil Law Legal System, LONDON SCHOOL OF ECONOMICS (Oct. 10,2018), https://soundcloud.com/lsepodcasts/judging-a-common-or-civil-law (last visited 2020).
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