An Analysis of Civil Law and Common Law Legal Frameworks

This essay provides a comprehensive comparison of civil and common law legal systems. It begins by defining both systems, highlighting their historical origins and geographical spread. The essay then delves into the key differences, including the primary sources of law (statutes versus judicial precedent), the roles of judges and lawyers in the courtroom, and the flexibility within each system. In civil law systems, statutes and codified rules are paramount, with lawyers having a more limited role and judges acting as investigators. Conversely, common law systems emphasize case precedents, giving lawyers a more active role in presenting arguments and examining witnesses, while judges have greater flexibility in shaping legal outcomes. The essay also references key literature and concludes by emphasizing the influence of historical factors on the adoption and evolution of both legal systems, as well as the impact of these differences on the roles of legal professionals and the overall responsiveness of the law to societal changes.

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Legal system refers to the underlying procedures and processes that would be deployed for
the enforcement and interpretation of law. The legal system tends to highlight the rights and
responsibilities through a myriad of ways. There are three major legal systems namely
religious law, civil law and common law. The most common out of the above three categories
in modern societies are civil law and common law. Civil law originated in Europe and traces
the origin from the late Roman law. A key aspect of civil law is that there are certain key or
core principles which tend to be codified as a system that can be referred and thereby tends to
serve as a key source of law. Hence, in the civil law based legal systems, the legal codes are
given paramount importance. This is in sharp contrast with the common law where the
doctrine of judicial precedent is follows and hence more emphasis is given on cases already
decided by the superior courts as compared to the statutory laws. The common law system
originated in England and subsequently spread in North America and total followed by most
of the Commonwealth countries owing to their historical roots (Edlin, 2007).
There are a host of differences between the civil law system and the common law system.
One of these relate to the geography of influence which is primarily based on the historical
roots. The civil law legal system is currently being followed in about 140 countries most of
which are European nations. On the contrary, the common law system is adopted in about 80
countries led by England, United States, Canada along with Commonwealth nations. This
difference is primarily attributed to their respective origin. Secondly, there is a difference in
the primary law source. In case of civil law system, precedence is given to the statutes and
the decisions are pronounced in accordance with the codified rules. As a result, the
lawmakers have the primary responsibility to update the law to reflect the reality of the day as
the flexibility with judges is quite constrained since they are required to abide by the statutory
law and the rules contained therein. This is in sharp contrast with the common law where the
case precedents are given a preference over the prevailing statutes. As a result, even though
the lawmakers may not be proactive in altering the law, the legal system can then also be
responsive as the judges have the requisite flexibility. This is especially the case with higher
court judges who can pronounce judgements that can act as precedents for the lower courts to
follow and thereby bring about a change in the legal framework of the nation (Gibson and
Fraser, 2014).
A third difference relates to the role of the lawyers and the judges pertaining to the court
room. In the civil law system, the lawyers tend to have limited role only as they have to
advice their respective client in relation with the applicable law under the given scenario. As

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a result, the role of the lawyers in the courtroom with regards to oral arguments along with
presentations in court is quite limited. Also, the lead in legal proceedings is led by the judges
who tend to be actively involved with regards establishing facts and applying the available
remedies. As a result of their role, the judges in legal system are known as investigators. On
the contrary, the lawyers tend to play a very active role in the common law legal system since
it is based on precedent case laws. Hence, the lawyer needs to make an active presentation in
front of the judge and/or the jury in relation with the relevant cases that would tend to serve
the interest of their respective clients. Further, the examination of witnesses is done by the
lawyers only as judges tend to preside over the court proceedings and need to either make
judgement or to read the judgement made by the jury. However, in common law legal system,
the role of the judge is also more pivotal considering that there is higher degree of flexibility
especially with the higher courts in terms of decision making and providing for remedy. Also,
as stated these decisions can also have future connotations (Harvey, 2009).
Hence, it is apparent from the above discussion that while both common and civil law tend to
be quite popular but their geographical spread is quite influenced by historical factors.
Additionally, the role of judges and lawyers along with lawmakers tends to differ under the
two systems in terms of their roles and the flexibility owing to the difference in primary
source of law.

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References
Edlin, D. (2007), Common law theory. 4th edn. Cambridge: University Press Cambridge.
Gibson, A. and Fraser, D. (2014), Business Law. 8th edn. Sydney: Pearson Publications.
Harvey, C. (2009), Foundations of Australian law. 3rd edn. London: Tilde University Press.