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The primary difference between common law and civil law lies in how legal concepts are established over time. Common law decides cases based on judicial rulings and legal precedents, whereas civil law utilizes codified statutes. While systems vary throughout the world, every country generally recognizes civil law, common law, or a hybrid of the two.
Possessing an understanding of the difference between common law and civil law is crucial to attorneys, particularly in contract translation. Otherwise, matters can result in barriers to fair and equitable resolutions involving global commerce and transactions.
Both common and civil law systems were developed during the Middle Ages (500-1500 AD) in Europe, with civil law emerging later. Over time, other nations, like Japan and Russia, began adopting civil law systems to compete politically and economically with European states.
The origins of common and civil laws help lawyers understand the divergence between the two systems when engaging in contract translation services.
Common law emerged from economic changes and the powers of the king in the Middle Ages. In1066, medieval kings centralized and consolidated control to justice and royal authorities. Legal actions functioned through a royal order, or writ system, which provided a remedy or decision for a specific wrongdoing.
Since this system became highly rigid to achieve justice, courts began to apply equity principles based upon numerous resources, including natural and Roman law. Although the writ system was abolished in the nineteenth century, there are still separate courts and specific types of writs are still in use, including subpoenas and warrants.
Civil law is modeled after Roman law, established in the sixth century. While the West predominantly used these laws, it became the basis for legal action in the sixteenth century. Legal scholars in Europe modified the principles for modern needs.
This legal evolution gave rise to a structure that is integral to Europe’s system. As civil law came to the forefront of practice, local customs became increasingly vital as unification and organization occurred. During the eighteenth century, several legal codes shaped today’s model of our civil law system.
Under both systems, judges’ and lawyers’ roles are imperative when adjudicating and overseeing court cases and establishing new laws. Judges make legal decisions based upon a variety of elements, and lawyers protect their clients’ rights. In tandem, both of them uphold the common or civil laws of the land.
The difference between the role of judges and lawyers in either system includes the following:
Attorneys typically play an essential role in dispute resolution involving contracts and transactions regardless of location and country. If your practice areas include global contracts, consider the legal translation to ensure compliance with both legal systems.
Another difference between systems of common law and civil law includes setting a precedent, a significant function of the common law system. The main objective is to evaluate a matter based on the facts and circumstances that occurred and arguing for or against precedents when pleading. Judges may rule over whether or not a particular precedent is relevant to the case.
In civil law, the lawyer’s role is to protect their client’s rights through litigation or defense. However, precedent under the civil system is not binding. Instead, judges take caselaw into account and render decisions based on their judgment.
Contract laws are most flexible in common law nations. In general, their provisions hinge upon private laws and have very few requirements. However, the terms and conditions are often quite specific. On the other hand, countries that follow civil law offer more significant provisions and a more refined model.
The signing of a constitution is not a rule of common law. However, common law countries may or may not choose to follow a constitution or a set of laws. Conversely, the civil law constitutions for the base for a code of laws or those that apply to specific legal areas, such as corporate, probate, or tax law.
Evidence in common law is necessary to prove a case beyond a reasonable doubt before a judge or jury. Parties of a court matter have the right to compel evidence through “discovery” requests that are used to speak to the facts of the case.
Civil law countries feel that the discovery process of common law countries is overly intrusive. Under a civil law system, lawyers do not ask questions. Instead, they create legal arguments and present them before the court. The judge will ask questions and examine evidence accordingly.
As you can see, it is critical to translate contracts according to the country’s legal system to which the document will subscribe. Mistakes in contract translation can lead to more significant issues in the future, including bigger problems for clients that do not have enforceable contracts in their country of jurisdiction.
After understanding the origins of common and civil laws, knowing the sources of law that each system follows is critical. Sources of law are a law’s origins and rules that enable governance. It may also refer to a seat of power that gives it authority and validity.
The sources of law for common law systems include:
The sources of law for civil law systems include:
Examining the differences between the top common law and top civil law countries also provides a greater understanding and context of the information presented herein.
In order of highest performance, these are the top 10 common law countries by economy:
In order of highest performance, these are the top 10 civil law countries by economy:
Within the context of contracts, understanding the differences between common law and civil law will help you draft and execute contracts better, particularly when they cross national borders. Compliance with constitutions, statutes, customs, and other law sources ensure that your contracts are secure, which means that your clients are protected. The legality and enforceability of a contract are some of its most practical features.
At ContractsGlobal, our legal translation and contract translation services will help you translate contract language for compliance with local rules and laws. Get started today with no upfront payment to you.
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