Common Law versus Civil Law

Common law system gavel  in courtUpon the birth of the Duke and Duchess of Cambridge’s first child, the gender of the child does not determine whether or not he or she will inherit the throne. If George Alexander Louis had been a girl, her younger brothers would assent the throne before her because boys received more precedence to the throne over girls in past royal history. This royal succession rule was never written down, but has been followed by the royal family and legislation for centuries until 2011 when rule was changed. The royal succession law is a part of English common law, which is the foundation to the English legal system. But what is common law? How does it differ from civil law systems?

Common law is particularly an English development. After 1606, monarchs of various regions united the country and laws under the king’s court. Justices at the time created common laws based on customs and rules founded by the many monarchs; they were developed rules progressively, rarely ever written down, but was known by the people. Most other European rulers drew ideas from Roman law and the emperor Justinian to develop a legal system.

For common law systems, judicial cases are viewed as the most important foundation of law and gives judges an active role in developing laws. To guarantee uniformity, the courts abide by precedents set by higher courts that are dealing with similar disputes. Civil law systems use codes and statues designed to cover all contingencies. Judges tend to have a limited role in applying the law to each case. Civil law judges act as investigators, while common law systems act as mediators between parties that present their arguments.

Civil law systems are more common worldwide; countries with common law systems are found mostly in former English colonies or influenced from Anglo-Saxon traditions, such as Australia, India, Canada and the United States. People in civil law countries tend to think of their system as more just and fair when compared to common law countries because their laws are easier to differentiate and stated unambiguously. Conversely, English lawyers find common law systems flexible because they can quickly adapt to situations without the need for Parliament to indorse legislation. Nonetheless, legal systems in several countries are starting to mix both common and civil law together, giving its legal system the best of both worlds.

Common law in England has shown to be very flexible, and able to adapt and modify when needed. For example, based on the change in the royal succession rule, had Prince William and Catherine’s first born child been a baby girl, she would be the next heir to the throne and her younger brothers would not be allowed to precede her. But since the Prince and Duchess had a healthy baby boy, he will be the next heir to the royal family throne.

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