Civil and common law: A comparison

THERE are two main legal systems in the world, the Civil Law and Common Law systems, both of which are of Western origin. Most other systems are derived directly from these two. The Civil law has its origin in Roman law and is practiced in most of Continental Europe and the Francophone world.

THERE are two main legal systems in the world, the Civil Law and Common Law systems, both of which are of Western origin. Most other systems are derived directly from these two.

The Civil law has its origin in Roman law and is practiced in most of Continental Europe and the Francophone world.

The Common law originated from English law and is practiced in the United Kingdom, most states in the US save for Louisiana, Canada minus Quebec and the rest of the Commonwealth world, save for the newer entrants.

Rwanda follows the Civil Law system which it inherited from Belgium but has lately borrowed a number of concepts from the Common law system to suit its unique circumstances.

There are significant differences between these two legal systems related to legal sources, fundamental concepts, substantive and procedural law. However, the principles in both are similar and therefore the two systems can be seen as two different paths leading to the same goal.

In fact many Rwandan lawyers trained in Common law practicing countries have had little trouble practicing law in Rwanda.

The main feature of civil law is that it is contained in a set of laws called civil codes which are enacted by parliament.  When presented with a case, a judge under civil law applies and interprets the law contained in a code, or a statute to the case at hand.

The assumption is that the code regulates all cases that could occur in practice, and when certain cases are not regulated by the code, the courts should apply some of the general principles used to fill the gaps.

The Common law on the other hand is based mainly but not entirely on case law i.e. decisions made by courts in previous cases.  Common law follows the principle that earlier decisions made by higher courts (precedents) in a similar case, should be followed in subsequent cases by the other courts i.e. that precedents are binding on the courts in subsequent cases.

When presented with a case, a judge under common law starts with the actual case and compares it with the same or similar legal issues that have been dealt with by courts in previously decided cases, and from these relevant precedents makes a decision.

To illustrate how the system of precedents works, in the famous English case of R V R decided in 1991 court ruled that marital rape is a crime and convicted a husband for raping his wife.

Prior to it,  under English law, a husband could not be convicted for if  he had sex with his wife without her consent, because, courts viewed  marriage as giving perpetual conjugal rights to a spouse, and this consent could not be revoked except through divorce– it therefore seemed to follow that a spouse could not revoke consent to sexual intercourse.

But after R V R, all English courts are now legally bound to convict for rape a husband who has sexual intercourse with his wife without her consent.

Courts in Common law are thus supposed not only to decide disputes between particular parties but also to provide guidance as to how similar disputes should be settled in the future.

This difference in the role of court is the result of the different role of a legislator in civil law and common law.

The civil law is based on the theory of separation of powers, whereby the role of a legislator is to legislate, while the courts should apply the law. On the other hand, in common law the courts are given the main task in creating the law.

There are other differences between these two legal systems, but it would be impossible to do them justice in this brief article.

Richard Balenzi is a lawyer.

kalricardo@yahoo.com

 

 

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