Common law is one of two legal traditions that most nations follow. The other is civil law. Common law dates back to the Middle Ages in England. It was used in colonies as the British empire spread throughout the world.

Civil law was more commonly applied in parts of continental Europe and used in colonies belonging to Spain, Portugal, and other countries. Later, in the 19th and 20th centuries, many countries with different legal structures adopted civil law as they reformed their legal systems. This allowed them to increase their political and economic power to compete with Western European countries and municipalities.

Americans are familiar with a legal system still based on the English tradition of common law. They might consider civil law to be confusing and unfamiliar. There are many reasons the legal systems in England developed differently than those in continental Europe.

Civil Law

Civil law involves comprehensive written codes and statutes that are constantly updated. They anticipate all potential matters that might be brought into court, lay out the appropriate procedures for dealing with them, and suggest a punishment for every offense. These codes are separated into categories:

  • Substantive law determines which acts should involve criminal or civil prosecution.
  • Procedural law provides guidance for determining if an action is a criminal offense.
  • Penal law determines the appropriate penalty for the offense.

The judge's role in a civil law system is to determine the facts involved in the case and apply the correct parts of the code to it. The judge can bring charges and run the investigation but must follow an established procedure in deciding the case and pass judgment according to comprehensive laws. The laws themselves are not shaped by the judge's decisions, but by scholars and legislators who can revise and rewrite them.

Common Law

Unlike civil law, common law does not involve a thorough set of rules and statutes. These statutes are determined by legal decisions and established precedents, which are judgments that have been made on previous similar cases.

Court records contain precedents for each case. Cases are also documented in yearbooks and legal reports, which are collections of case law. The judge presiding over each case decides which precedents should be applied. In this manner, American and British law has been and is still shaped by judges.

Common law is a contest that takes place between two parties that are in opposition, and a judge moderates the debate. Ordinary people, who do not have any legal training, serve on a jury to hear the case's facts and make a decision. Afterward, the judge decides upon the sentence.

The idea that the law should represent the common custom of the individuals that live in the region can be traced back to the Middle Ages and has become an Anglo-American tradition. Its basis comes from the three courts of the English Crown that existed in the 12th and 13th centuries:

  • The Exchequer
  • The King's Bench
  • The Common Pleas

These three courts held authority over cases that had previously been decided by local courts or headed by manors such as forest courts, admirals' court, guild court, and baronial court. Their authority only extended to their subject matter or geographic region.

The procedure established by early common law courts relied on a complicated system called pleading. In pleading, only the specific offenses named were subject to judgment. The complainant, or plaintiff, had to satisfy all the specifications of the writ before common law court would hear the case.

Code pleading, also called notice pleading, was a simplified form of pleading instituted later as a reform. It required only a basic, factual statement about the complaint before it was submitted to the court.

American Law and Civil Law Influences

The American legal system is still based on common law since it was influenced mainly by the English colonies. However, the civil law system has been applied, as well, particularly within state legislatures. This is frequently due to the influence other countries have had on those states' histories.

For example, Louisiana's state law has a strong civil law influence due to its history as a Spanish and French territory before being purchased from France. Several states in the Southwest have civil law influences thanks to their Spanish and Mexican heritage.

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