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 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.
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.