On the difference between Common Law & Romano Germanic Law (Civil Law)
By Ismail Jama
Common Law is a legal tradition that originated in England from the 11th Century onwards. Civil or Romano Germanic Law developed mainly in Continental Europe. There are a number of distinctive features that distinguishes Common Law from Romano Germanic Law.
Source of Law: The sources of law in Common law states appear, for most part, in reported judgements otherwise known as judicial precedence. Common Law focuses more on judge-made case laws. Sources of Common law also include legislations and codified statutes which are provided with specific applications and exceptions. In Romano Germanic law, sources of law are compiled and codified into an abstract collection for legal reference. Codes in civil law states are mostly succinct and are not provided with definitions, clarifications or exceptions.
Principle of Precedents: In Common law states, judges find a general principle in each of the cases and these principles are relocated into a current dispute that needs to be adjudicated. Common law promotes the doctrine of stare decisis which literally means 'stick to decisions'. In Civil law states, judges are bound to codes and reason, regardless of judicial decisions made in previous cases with similar facts.
Method of Legal Thinking: In Common law states, courts reason from case to case by focusing on each case explicitly and subsequently, developing a principle or precedence. Common law prioritizes jurisprudence over doctrines. In Civil law, the method of legal thinking in courts focuses more on developing abstract principles, regardless of previous similar cases, and these principles are applied to the facts of a case by a process of consideration. In civil law, the principles are made to solve problems prior to their occurrence. In civil law, doctrines have a priority over jurisprudence. This is mainly due to the fact that in Civil law countries courts are strictly subjected to applying the laws passed by the legislative body (Montesquieu's Theory). On the other hand, in common law states, judge-made law or precedence forms the basis and the core of the legal system.
Function of Doctrine: In Common law countries, doctrines are exploited to find differences and similarities in cases decided beforehand and as a result specific rules are extracted from these decided cases. In Civil law states, doctrines are used by lawyers, jurists and judges as guidelines for managing and settling on subsequent cases. Doctrines develop basic rules and principles in which practitioners and judges have to abide by when making a judicial decision.
Appointment of Judges: In Common law countries, judges must be quite old of age and are typically selected and appointed from among veteran lawyers or legal practitioners. In Civil law countries, recently graduated, highly skilled but inexperienced lawyers are appointed to adjudicate cases in lower courts immediately after their recruitment. In Civil law states, for instance Germany, the age limit for being a judge is 35 years old which is quite young in Common law countries.
Procedural Differences: In Common law countries, the judge's duty in court proceedings is only to handle the proceedings, to reassess all the facts of the case and the legal views presented to him by the attorney and finally cite a verdict. Thus, in Common law states, the proceedings focuses more on the behaviour of the attorney. A highly skilled attorney with great skills of persuasion may sway a judge into ruling for his or her favour. In civil law court proceedings, judges have a more active role to play. Civil law judges conduct many functions, in which attorneys in Common law states are responsible for. For example, civil law judges are responsible for oral questioning of the witness when taking evidence. Additionally, in common law countries, each lawyer can bring forward their 'own' witness and the judge only has to decide which witness is more believable. On the other hand, a Romano Germanic law court proceeding requires the judge to appoint one witness of his or her choice and then forced to accept the witness's decision.
Purpose of Proceedings: In Common law states, both litigants in a court proceeding are required to find out facts of the case, subsequently presenting their facts to the judge for him or her to make a verdict. In Civil law proceedings, the purpose is simply to settle disputes. This is one of the reasons why lawyers in Civil law litigation have an inadequate role when litigating.
In conclusion, the administration of justice in Romano Germanic law focuses more on codified, abstract principles in which judges have to abide when making a judicial decision. The codes in civil law states are concise, amorphous and are made to solve problems even before the appearance of the problems. On the other hand, Common law focuses more on judicial precedence, where each case is examined on its own and as a result a principle is formed. Consequently, these principles are harnessed by judges to adjudicate on cases that come before them.
