Common Law vs Civil Law

Things you must know about Common Law and Civil Law

Marcelo Ruiz Rodrigues dos Santos

Common Law Principles

• Relies primarily on court decisions to interpret legislation and develop law;
• Favors flexibility, although predictability comes from the principle of precedent or stare decisis;  
• Relies on a combination of inductive, deductive, and analogical reasoning;  
• While common law lawyers tend to interpret legislative law narrowly, common law courts tend to interpret legislation more broadly than civil law courts, and this provides the flexibility to address new situations without new legislative action; 
• The court solves only those issues that are put before it; the lawyers identify and frame the issues and then are the advocates for their respective sides.

 Civil Law Principles

•  Relies primarily on legislation to develop and enact laws; 
• Favors predictability and stability, but is generally very inflexible because it can be changed only by legislative action; 
• Relies primarily on deductive reasoning;  
• Civil law lawyers tend to interpret the law expansively in order to add the flexibility necessary to apply the legislation to new situations when they arise.  However, the current trend in some civil law jurisdictions is for lawyers to keep informed about and often use prior judicial decisions (jurisprudence) in new cases; 
• The court often identifies the legal issues, investigates the facts, selects and questions the witnesses, and assumes the procedural initiative.

 Doctrine of Stare Decisis

 Once a court has decided a case in a certain way, future cases should be decided the same way IF the facts are substantially similar to the prior case.  This provides at least some certainty to the common law. 

 Considerations: 

 The doctrine applies only when the pending case is similar enough to the prior case to justify the application of the doctrine.

 If and when there is good reason, a lower court can decide not to follow the precedent of the higher court in that jurisdiction.  The most common reason for this occurs when there has been a significant change in circumstances and/or culture since the precedent was issued. 

A court can overrule its own prior decision when it decides that the law must change. Such change can occur for three reasons:

i.          the prior decision was poor reasoned originally,

ii.         the application of the prior decision has produced unanticipated and/or undesirable results in cases that were not anticipated when the prior decision was made, and 

iii.         modern conditions now require a different principle or approach to the law.