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Unlike the French legal system, the English framework is in general terms, based on jurisprudence or case law. The English legal system of common law is the basis of the legal structure of many English speaking countries from England to Australia to Brunei.  The French legal sytem, however, is based on civil law meaning that it is codified and it originates from Roman law. The legal system in France can seem foreign to us, but, on the flip side of the coin, the concept that a law that has never been written down is still considered a law can be very confusing to the French. So what is civil law and how does it differ from the system of common law ?

Common Law

First let’s look at the system of law used in most English speaking countries. The Economist explains that “the system emerged from pre-Norman times where rules where different in each part of the country. To provide consistency, 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.  It incorporates backdated influences from the Bible and from the Romans and Normans. When making a decision, court judges are largely bound by the rules and other doctrines developed by earlier courts.

The CIA world factbook indicates that the legal system of England is also in force in approximately 80 countries formerly part of, or influenced by, the former British Empire.

According to the World Bank these are the main features of the common law system:

  • There is not always a written constitution or codified law
  • Judicial decisions are binding – decisions of the highest court can generally only be overturned by that same court or through legislation
  • Extensive freedom of contract – few provisions are implied into the contract by law (although provisions seeking to protect private consumers may be implied)
  • Generally, everything is permitted that is not expressly prohibited by law.

Civil Law

Generally speaking, a civil law system more prescritive than its common law counterpart. It is largely based on Roman law. In terms of a contract, for example, even if the clause is not expressly written down but is contained in the pertinent contract law code, the clause will apply. Therefore there is less of an emphasis on setting out all the clauses to the contract since the restrictions covered by law will apply even if they are not expressly mentioned.

The salient features of the civil law system are:

  • There is generally a written constitution based on specific codes (e.g. civil code, codes covering corporate law, administrative law, tax law and constitutional law)
  • Only legislative enactments are considered binding for all. There is little scope for judge-made law in civil, criminal and commercial courts, although in practice judges tend to follow previous judicial decisions
  • Courts are specific to the underlying codes – there are therefore usually separate constitutional court, administrative court and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code
  • Less freedom of contract – many provisions are implied into the contract by law and parties cannot contract out of certain provisions.

To add to the mix, there is another layer of legislation in the case of countries that are members of the European Union. Although the ratification of a European constituion is still a work in progress, the European law system as it stands today is based on a set of rules expressed in a body of treaties and legislation.

Sources:
What is the Difference between Common and Civil Law, The Economist, July 16, 2013
The World Factbook, Central Intelligence Agency, USA
The World Bank Instrastructure Reource Center

Map:CC Public domain

This article is for general information purposes only and does not constitute legal, financial or other professional advice. We would advise you to seek professional advice before acting on this information.

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