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  • Writer's pictureKyle Persaud

What Is the Difference Between Common Law and Civil Law?

A commonly searched query on Google is “What is the Difference between Common Law and Civil Law?”

The difference between common law and civil law does not generally affect most Americans in their everyday lives. Typically, my blog only discusses issues that directly affect my clients. But, because many people are searching for the difference between civil law and common law, I thought I would write a post about it.

The terms “common law” and “civil law” refer to legal systems. A simple definition of the difference between common law and civil law is: A common law system is based on judicial precedent. A civil law system is based on legal codes.

Common law originated in medieval England. Today, common law is used in many countries which were formerly under English rule – including the United States. In the U.S., the 49 states and the federal government use common law. Louisiana uses civil law, because Louisiana was settled by the French, who developed Louisiana law based on French civil law.

Civil law has been in use in many civilizations, but the ancient Romans developed civil law in a very sophisticated manner. The Code of Justinian was based on Roman civil law. Civil law is still used in much of continental Europe. The Code of Canon Law of the Catholic Church is also based on civil law. To see a list of which countries use common law, which countries use civil law, and which countries use other legal systems, click here.

Here’s a recent example of how common law (based on judicial precedent) works: Last year in Oklahoma, a lawyer, Jack Shears, was arrested for driving under the influence and transporting an open container of alcohol; Mr. Shears pleaded no contest and was given a deferred sentence. The question then arose: Should Mr. Shears be disbarred for his conduct? Mr. Shears submitted a brief to the Oklahoma Supreme Court, in which he cited a prior state Supreme Court ruling that held that a DUI conviction “in and of itself does not show unfitness to practice law.” So, in Mr. Shears’ case, the Oklahoma Supreme Court followed its prior ruling, and did not disbar Mr. Shears.

This is called stare decisis. Stare decisis is Latin for “to stand by things decided.” Stare decisis is the central feature of common law systems. If a court makes a ruling, that ruling is binding on future decisions of the same court and any court below that court. In Mr. Shears’ case, the state Supreme Court was bound by its prior legal precedent. Because the court had ruled in the past that a DUI conviction does not, in itself, show unfitness to practice law, the court ruled that Mr. Shears’ DUI conviction, alone, could not be used to disbar him.

However, many courts have said that “stare decisis is not an inexorable command.” In common law countries, courts often do overrule prior decisions. A famous example occurred last year in Dobbs v. Jackson Women’s Health Organization, when the U.S. Supreme Court overruled its prior case of Roe v. Wade, and held that states may ban abortion. In Dobbs, the Supreme Court went to some length discussing when a court should follow prior precedent, and when it should not. To read the court’s explanation on this issue, click here.

In civil law, law is not based on judicial precedent, and prior decisions of a court are not binding on future decisions. Rather, civil law is based on legal codes. In civil law systems, a legislator (formerly often a monarch, but nowadays often a parliament) drafts a law and writes the law into the code. A court is required to follow the legal code. But, if the court interprets a legal code in a certain way, that interpretation does not bind the court, and the court may later interpret the law in a different way. May civil law codes are “comprehensive” codes – meaning that anything that is not in the code is not law. The U.S. and England, being common law systems, do not have comprehensive codes. Most continental European countries have comprehensive codes.

In many jurisdictions, both common law and civil law have some influence. For example, in the United States, there are legal codes in every state as well as the federal government. However, these are not comprehensive codes, and, because judicial decisions are binding precedent in common law countries, there are many laws in the United States that develop from judicial decisions, rather than legal codes. Thus, in the U.S. and other common law countries, there are many laws that are not in the legal codes. (In Mr. Shears’ case, there was nothing in the Oklahoma legal code that said a DUI conviction could not show unfitness to practice law, but that provision was law because a prior court decision said so.) Similarly, common law has some influence in Louisiana, because of the influence of other U.S. states.

“Civil law” has a different definition in other contexts

The above explanation described what “civil law” means when “civil law” refers to a legal system. However, in other contexts “civil law” can mean something entirely different. For example, in the United States, any court case that is not a criminal case is a “civil case.” Thus, you will often hear of non-criminal law referred to as “civil law.” Here, however, this does not mean that non-criminal law in the U.S. is not based on judicial precedent. In the U.S. court still decide civil cases under principles of common law. As Wikipedia explains, “In common law legal systems such as England and Wales and the United States, the term [civil law] refers to non-criminal law.” In an earlier post, I discuss the difference between civil law and criminal law.

How does this affect you?

Typically, in my blog posts, I tell how legal principles will affect my clients. However, all you need to know is: If you’re in the U.S. outside of Louisiana, you are under common law. If you go to most of continental Europe or some other countries, you are under civil law. In the U.S., if you have what is called a “civil case”, the word “civil” has an entirely different meaning, and the common law still applies.

Photo courtesy of Licensed under CC BY-SA 3.0

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