MTC037: Introduction to Law II

Explain 5 differences between Common Law and Civil Law System

Comparing and contrasting the two most widely used legal systems of the world and a brief discussion of the legal system in Malaysia.

Abdul Qayyum Bin Jumadi2009439062LWA02A12/22/2009

Explain Five Differences Between Common law and Civil law System

Introduction

What is common law? Newcomers to the field of law will explain Common law as the

law that is common to the land of England. While this might hold truth, common law has

rich history and shaped through tremendous amounts of pressure, both historically and

politically, and alteration throughout generations to make it how it is today. It is not

sufficient to simply label it as such because there is so much more depth in studying

common law.

Although having varied fundamentals, Civil law is another common legal system

being used in the world today. It is based on the principle of Corpus Juris Civilis which will be

discussed later on this paper. Moulded along with local practices and largely interpreted

with good intentions, Civil law is touted as the less rigid and more accessible of both of

these legal systems.

In this assignment, we are addressed to differentiate between the two legal system

in a mainly historical and characteristics basis.

Origins

Sir Matthew Hale, one of the most prominent lawyers who once served as The Lord

Chief Justice of England, stated that the origins of Common law are as undiscoverable as the

source of the Nile River.1 Of course throughout its tremendous history, it is hard to

determine the exact source of Common law. However, for purposes of understanding,

abstracts of the origins of Common law can be determined.

There was no law to govern the Kingdom of England wholly during the reign of King

Alfred the Great (871-899).2 The population was small and transportation as well as

communication was limited. Despite this, the Anglo-Saxons created the Kingdom of England

and its counties (or shires) headed by sheriffs. These shires were subdivided into hundreds

which in turn consisted of a number of “vills” or townships. The trial of cases, as well as

aspects of administration was dealt by Royal officials in “courts” or assemblies.

In general, there were no common sources of law from which all the shires and

hundreds drew. The system of law was localised.

The realisation of a unified system of judging came under the rule of William the

Conqueror. He established a system whereby he would sit on his bench and decided on

cases himself. He would have his entourage of court and courtiers following him around

throughout the land.

King Henry II (reigned 1154-1189) was particularly interested in law. It was him who

set up the foundations of ‘professional’ judges. He picked them from people from the clergy

or laymen, people who are learned in the law. He set up a permanent court which has a

permanent place at Westminster (King’s Bench of judges).

Common law in its early existence it consisted of procedural remedies rather than

substantive rights in the middle ages. It originated from the King’s Court (Curia Regis) who

originally administered it. Common law is popularly known as judge-made laws mainly

because the roles of legislators in developing the law rather than the judges came only in

the late 19th century.3

1Hale, Matthew (1820). The history of the common law of England. Oxford University. Pp. 54.2 Rivlin, Geoffrey (2004). Understanding the Law. Oxford university. Pp. 21. 3 http://www.britannica.com/EBchecked/topic/128386/common-law/40224/The-origin-of-the-common-law

The term Common law actually came from the Norman Conquest. It is laws that are

common to the realm of the Kingdom of England as opposed to the various and scattered

amounts of tribal laws that existed and applied throughout communities that existed then.

Before the Norman Conquest, justice was primarily delivered via County Courts and

presided by diocesan bishop and the sheriff. It is through these courts the trial by jury

system began.4

The common law of England was largely created in the period after the Norman

Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great, had

developed a body of rules resembling those being used by the Germanic peoples of

northern Europe. Local customs governed most matters, while the church played a large

part in government. Crimes were treated as wrongs for which compensation was made to

the victim.

What is unique about Common law is that it developed from custom from where

there was no set law. Common law continued to thrive even when written laws were

developed. Canon Law was introduced to the churches and administered by literate

clergymen by the Normans during the invasion but it remained unpopular compared to

Common law because of the solid foundation and sophistication of early Anglo-Norman

system in the Kingdom and also the disarray of the church’s system.

English courts of Common law are Common Pleas, Exchequer, and King’s Bench.

The court of Common Pleas was described as "the court which, more than any other,

shaped the medieval common law" by John Baker, a legal historian.5 Though the court of Common

Pleas was originally established to relieve pressure on the court Coram Rege (court in the presence

of the king), it was the platform for many influential legal cases and it heavily influenced the

procedures of other Common law courts. King Henry II ordered five of justices of his Curia Regis to

hear the “Common Pleas”: Magna Carta, c. 17, provided that the “Common Pleas” should be heard

“in a certain fixed place” (Which was soon designated as Westminster). This court is the third highest

common law court for 600 years.

4 “Common law”. Catholic Encyclopedia. New York: Robert Appleton Company. 1913. 5 Stated in the book, Introduction to English Legal History. John Baker is a member of the Royal Historical Society, British Academy and Burgon Society. He was knighted in 2003.

The exchequer was mainly responsible for the management and collection of

revenues but it became competent to try most classes of civil case.6 In more traditional

England, Exchequers were divided into The Exchequers of Receipt (collection of revenue)

and the Exchequer of Pleas (concerned with the king’s revenue). The system of exchequer

was abolished in 1834 under the reform of William Pitt, the youngest ever Prime Minister of

England.

The King’s Bench became independent in about the mid-thirteenth century. The

King’s Bench has the widest jurisdiction amongst the three courts. It could hear civil cases; it

was only one of the three that could hear criminal cases; it has a supervisory jurisdiction

over inferior tribunals which it exercises largely by use of the prerogative writs and writs of

error.

By 1875, all the three common law courts were abolished.

System of common law courts in England and Wales before the Judicature Acts 1873-1875 (taken

from Wikipedia.org. Retrieved, 30th November 2009)

Common law conforms to the inner workings of a community whereby it adapts itself to the

customs of the people because of the acts of the pioneers of Common law to roam the land, giving

judgements based on local customs and beliefs. Even when there were established permanent

courts, the cases that are presided over are recorded for further reference by both judges and

lawyers in the courts. This authority of previous cases is known as judicial precedent and will be

discussed later on in this paper.

While Common law largely originated from the land of England, Civil law is primarily inspired

by the Romans. Fundamentally, it is a large collection of works of jurisprudence (Corpus Juris Civilis)

6 “General Principles of Law”. Clive R. Newton. London: Sweet & Maxwell. 1983.

that is issued from 529-534 by order of Justinian I, Eastern Roman Emperor. Other names for Civil

law are Continental Law and Romano-Germanic Law.

The law that had been in force throughout the Roman Empire when it controlled most of

Europe and the Middle East was to some extent supplanted by Germanic Laws when Germanic

tribes carried out their great conquests. The principle of personal (as opposed to territorial) law was

observed by the invaders, however, and thus the former Roman subjects and their descendants

were permitted to follow the Roman law (leges romanorum) in their affairs with one another.

Although codified sources could be traced back well before the Justinian era, such as the

famous Code of Hammurabi, the significance of the code created by Justinian I is that it is more of a

compilation of works of jurisprudence and all existing imperial constitutions dating back to the time

of Hadrian (76 - 138). All these collection provided the model for division into books that were

divided into titles. These codices had developed authoritative standing.7

The Roman principles and concepts itself was entrenched in the laws used by the medieval

church. As trade and commerce emerge as an important aspect of life in the middle ages, the

Germanic laws was not as adequate as it was before. That, in addition to the expansion of Roman

knowledge and ideas throughout most parts of Europe and the Middle East, brought life to the

usage of Civil law.

In the Justinian’s Code, the law provided for strength in the rise of Christianity, asserting

such laws as laws against heresy, paganism, and also Judaism. The first part of the law was

completed in 529 but due to legal reforms by Justinian himself, it had to be renewed. A second

edition of the Codex (Codex repetitae praelectionis) was introduced on December of 534. The

former Codex was then repealed when the second edition was issued.8

The emperor removed repetitive and confusing laws from the times of Romulus9 in the

Codex, and also laws which are not capable to be followed by ordinary humans, in order for “all men

the ready assistance of their true meaning.”10

Scholars of Roman law were held in high regard as by 1500 the Corpus Juris Civilis had

become the basis of legal science throughout Western Europe. This Codex inspired several critical

codifications of law11; one is by Napoleon Bonaparte in a code of law now known as Code Napoleon, 7 http://en.wikipedia.org/wiki/Corpus_Juris_Civilis8 “Introduction to Roman Law”. James Hadley. Read Books. 2007.9 Romulus was the founder of Rome, along with Remus. During the reign, several laws made were considered as absurd, one of which includes wife beating is acceptable under the Law of Chastisement.10 This quote is taken directly from the first page of the preface of Justinian’s Code. 11 http://www.answers.com/topic/roman-law

a code that strongly influenced the law of many other countries. Historians have called the

Napoleonic Code "one of the few documents which have influenced the whole world."12

In England there was some interest in Roman law during the Renaissance; there, however,

the early centralization of the legal system and the existence of an independent class of lawyers with

an interest in the law as administered in the courts ensured the triumph of the common law.

Nevertheless, civil law influenced the common law in the fields of admiralty law, testamentary law,

and domestic relations, and civil law became part of the basis for the system of equity.

Though many believe that Civil law is secular, that it is not conforming local customs or

practices, Civil law’s adaptation is selective and subtle. Sometimes, Common law could not simply

solve a problem by applying local customs and practices, Hence there is a need for a statute that is

agreeable on the part of everyone. Roman law was particularly influential because European

customary law had developed in an agrarian economy and was often inadequate for an economy in

which commerce played an increasingly larger role.13

12 “The Napoleonic Revolution”. Robert B. Holtman. Baton Rouge: Louisiana State University Press. 1981.13 http://www.answers.com/topic/roman-law

Judicial Decisions vs. Codes and Statutes

For common law, it is the judges decisions in the past that brings significance, in contrary to

civil law whereby laws that are codified are the only official source of law.

When there are substantially similar facts in a case parallel to previous ones, legal principles

in that previous case would be applied to the present case, for as long as it is suitable. By this

method, precedents are developed. This basic principle is known as ratio decidendi (rationale for a

decision). Ratio decidendi is defined as “The principles or reasons underlying a decision, apart from

the special peculiarities of the case”14

In civil law, judges do not enjoy a similar privilege. They are recruited as new graduates and

specifically trained to be judges. Judges in the civil law can be categorized as civil servants. This is

largely due to the fact that judges need to be highly astute to be able to properly interpret the laws

in a statute. A dissenting opinion in a legal case is an opinion of one or more judges expressing

disagreement with the majority opinion of the court which gives rise to its judgment.15 Dissenting

judgements are not tolerated, as it is feared that they could undermine the judicial process..

There is another principle called stare decisis (to abide to decided cases), applied in common

law. This principle is an abbreviation from the phrase stare decisis et quieta non movere "to stand by

and adhere to decisions and not disturb what is settled."16 Thus, barristers that have a high

knowledge of cases would be drawn to become judges in common law. Unlike civil law, common law

judges give dissenting judgements. However, appeal procedures developed.

Also in common law, there is a principle of obiter dicta, which means a statement “said by

the way”. Although this is not binding, these comments that judges made about a case is marked as

persuasive. Obiter dicta can be by way of illustration or on hypothetical facts. This principle is an

observation by a judge which is either not necessary for the decision of the case or does not relate

the material facts of the case.17

The principles of ratio decidendi, stare decisis, and obiter dicta is not observed in civil law.

Though the high courts are respected and civil law systems are now reporting cases, these principles

can only be persuasive, never binding.

14 Legal Dictionary. Page 368 (International Law Book Series)15 http://en.wikipedia.org/wiki/Dissenting_opinion16 “Handbook of elementary law, Part “ Milo Jesse Bowman. California: West Publishing co. 1929.17 Legal Dictionary. Page 363 (International Law Book Series)

Writs and Equity

A writ is a translation of Late Latin “breve” (a letter), since it had the form of a short letter

(German”brief”). The English word “brief” is used interchangeably with writ in older texts.18

In history, a writ was a letter, or command, from the King, usually written in Latin and sealed

with the Great Seal. At a very early stage in the English common law, a writ became necessary, in

most cases to have a case heard in one of the Royal Courts, such as the King's Bench or Common

Pleas. The writ would act as a command that the case be brought before the Royal Court.

If whereby a plaintiff wished to have a case heard by a local court, or by an Eyre (the right of

the king (or justices acting in his name) to visit and inspect the holdings of any vassal)19 that is

visiting, a writ is not necessary. In local courts, action can be taken after an informal complaint,

which can be done orally or in writing.

However if a plaintiff wished to avail themselves of Royal — and by implication superior —

justice in one of the King's courts, then they would need a writ, a command of the King, to enable

them to do this. It is important to remember that in the very early stages of the evolution of the

common law, recourse to the King's courts was unusual, and something for which a plaintiff would

have to pay.20

The writ would usually have been purchased from the Chancery, although the court of the

Exchequer, being in essence another government department, was able to issue its own writs. Writs

were ossified by the 13th century. The hole left by this ossification is filled by equity, a more flexible

law.

In modern law terms, a writ is a formal written letter issued by a body with administrative or

judicial jurisdiction. Examples of writs includes: writ of mandamus, writ of prohibition, writ of habeas

corpus, writ of error, and writ of Certiorari.

Aristotle once suggested that a legal rule may be ignored by a judge if its literal application

will cause would cause an injustice which the legislator could not have intended. This is the basic

foundation of equity. It is without a doubt that at times there could be injustice due to the automatic

application of legal rules.

18 Legal Dictionary. Page 218 (International Law Book Series)19 http://en.wikipedia.org/wiki/Eyre_(legal_term)20 http://www.constitution.org/writ/writ_def.htm

Equity, in basic terms, is a body of laws that was enforced in the court of Chancery of

England in order to aid, supplement, or correct the common law. To a certain extent, equity is

separate body of law from the common law.

It is also used in the law, as a synonym to the words “justice” or “fairness”. In this sense, it is

used in common law decisions as well as in those of equity proper, as a gauge of moral rightness in

the interpretation of statutes and in the application of legal rules.21

In common law, equity supplements the strict rule of law where their operation could

operate harshly. In civil legal systems, broad "general clause" allow judges to have similar leeway in

applying the code.22

21 Legal Dictionary. Page 70 (International Law Book Series)22 http://en.wikipedia.org/wiki/Equity_(law)

Interpreting laws

Because of the principles instilled in the common law systems such as stare decisis and ratio

decidendi, the tendency of the laws in this legal system to become rigid is a reality and this rigidity is

what gave rise to the development of equity. Also, the small number of judges sitting on the

common law courts gave rise to an inflexible system of common law because of this powerful and

tight-knit judiciary.

According to Lord Denning, 'It is the foundation of our system of case law'. However,

Denning was 'against is its too rigid application - a rigidity which insists that a bad precedent must

necessarily be followed'. It is the doctrine's rigidity that can prevent developments to meet the

changing needs of society. However, this was recognised in the House of Lords 1996 Practice

Statement. In addition, judges in the lower courts are adept at avoiding the doctrine's rigidity.23

This is where equity plays a part in easing the rigidity of the common law. Equity softened

the rigidity of the common law and ensures that judicial decisions were not unfair and contrary to

moral conscience.24

In common law jurisdictions, the judiciary may apply rules of statutory interpretation to

legislation enacted by the legislature or to delegated legislation such as administrative agency

regulations.25

Judicial reviews of statutes and executive actions are practiced in common law systems and

not in civil law systems. Judicial review is the doctrine in democratic theory under which legislative

and executive action is subject to invalidation by the judiciary.26

The tendency of civil law to be rigid is more explainable as it is believed that laws that

stemmed from codifications must be strictly followed, therefore leaving little space for flexibility.

However, the concept of good faith that is applied in civil law in interpreting the codes makes

comparatively less rigid than common law.

23http://www.coursework.info/GCSE/Law/The_doctrine_of_precedent_is_based_on_th_L123335.html#ixzz0aMFp1kLV24 http://ecours.univ-reunion.fr/ecours/IMG/pdf/Common_law.pdf25 http://en.wikipedia.org/wiki/Statutory_interpretation26 http://en.wikipedia.org/wiki/Judicial_review

Judges, Lawyers, and Trials

The judges in the common law system are picked from the experienced lawyers while in civil

law systems the judges are specially trained to be a judge as a career. Lawyers in common law

systems are typically divided into two, namely barristers and solicitors. Barristers specialize in

litigation while solicitors traditionally do not appear in courts.

One clear difference between common law systems and civil law systems is the mode of

trial. Common law widely practice adversarial system, also known as confrontational system while in

civil law, the inquisitorial (or collaborative) system is more common.

Differences between adversarial system and Inquisitorial system27

The adversarial system works by the exposure of both sides of the story, where there are

two sides acting as opponents, so to speak. Both side would argue their case and expose everything

about the case. In the inquisitorial system, the judges play a more active role.

The lawyers play a major part in the adversarial system. They are in charge of handling the

case in representation of their client who hired them. In the adversarial system, the parties are the

active component compared to the judges. In contrary to the adversarial system, in the inquisitorial

system it is the judges who sets the agenda in the courtroom and controls the trial.

Arguments on both sides are also different. In the adversarial system, the arguments and

debates are extensive and fundamental. In the inquisitorial system of trial, debates and arguments

are modest and restricted. Therefore, the former has more of an inductive style of reasoning while

the latter has a deductive style.

Lawyers are the primary players in the adversarial system as they control how the trial goes.

They debate and oppose each other, while lawyers in the inquisitorial system advise and inform the

judges. Lawyers in the inquisitorial system work together with judges in order to achieve a just

result.

A judge is treated more like a political VIP in the adversarial system. He plays a passive role,

only examining and judging the relevancy of evidence and its discovery as the trial emphasizes on

procedural correctness. Facts gathered by the lawyers are taken into play, and then the truth of a

27 This comparison is through examining various sources of the internet, namely Wikipedia, docstoc.com, Google Scholar, Google books, and flipkart.com. The book used is Questions and Answers on Malaysian Courts, Statutes, Cases & Contract, Tort and Criminal Law by Nuraisyah Chua Abdullah.

case is extracted. In the inquisitorial system, judges who are highly trained carry the burden of

extracting facts and controlling the conduct of the parties. Judges have the power to call witness to

question them himself and request assistance from experts and state officials.

For evidence brought into the court, any evidence brought into the court is tested for its

accuracy by the examination-in-chief in the adversarial system. As an accused is not compelled to

give evidence in a criminal adversarial proceeding, he may not be questioned by prosecutor or judge

unless he chooses to do so. However, should he decide to testify, he is subject to cross-examination

and could be found guilty of perjury.28

In the inquisitorial system, all stages of examination in the trial are handled by the judge.

Evidence and witnesses are not brought to the trial for the processes of examination. The evidence is

submitted and analysed by the judge while witnesses cannot be questioned similarly to the

adversarial system.

Plea bargaining is "The process whereby the accused and the prosecutor in a criminal case

work out a mutually satisfactory disposition of the case subject to court approval. It usually involves

the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-

count indictment in return for a lighter sentence than that possible for the graver charge."29

Plea bargaining only exist in adversarial systems. Plea bargaining is extremely difficult in

jurisdictions based on civil law. This is because unlike common law systems, civil law systems have

no concept of plea – if the defendant confesses that confession is entered into evidence, but the

prosecution is not absolved of the duty to present a full case. A court may decide that a defendant is

innocent even though they presented a full confession.30

In conclusion, although both trial system sport different methods in dealing with parties

involved, witnesses, evidence, and the proceeding itself, their aim are still the same, that is to

achieve justice.

28 http://en.wikipedia.org/wiki/Adversarial_system29 Black’s Law Dictionary30 http://en.wikipedia.org/wiki/Plea_bargain

Examples of Countries practicing Common Law and Civil Law Legal System

Common Law: Malaysia

Year of practice: 200+ Years (since the first Recorder of the Court of Judicature of Prince of Wales’ Island was appointed by the British)

Notable features:- Practices a dual legal system (syariah Law) but Common law is more widely applied in cases

as Syariah law only applies to the Muslim population. - Lawyers in Malaysia do the double task of being both barristers and solicitors.

Civil Law: Germany

Year of practice: 100+ years (The civil code of Germany, the Bürgerliches Gesetzbuch was in development since 1881, it became effective on January 1, 1900, and was considered a massive and groundbreaking project)

Notable features:- In Nazi Germany, there were plans to replace the BGB with a new codification that was

planned to be entitled "Volksgesetzbuch" ("people's code"), which was meant to reflect Nazi ideology better than the liberal spirit of the BGB, but those plans did not become reality.31

- The principle of abstraction is used, whereby having an obligation to transfer of ownership does not make you the owner, but merely gives you the right to demand the transfer of ownership.

31 http://en.wikipedia.org/wiki/B%C3%BCrgerliches_Gesetzbuch

Legal System in Malaysia

Malaysia is a federation that is comprised of 13 states. Here, we practice parliamentary

democracy. Because of the last colonisation of the country by the British, the legal system practised

here is based on the common law system stemmed from the Westminster model of Britain. As

provided by Article 160 of the Federal Constitution defined law, included that ‘the common law in so

far as it is in operation in the Federation or any part thereof’. English law is therefore part of

Malaysian law.

However, Malaysia does have its own provisions allowing for the Syariah to be one of the

laws practised here32. However, the impact of the Syariah law here is relatively small, having the

limited jurisdiction of imposing fines for an amount not more than RM3000, and imprisonment to

not more than 6 months.

The Federal Constitution is the supreme law of the land. The acts of every organ in the state

must comply with its provisions. In Malaysia, judges, in interpreting the constitution, may adopt

either a literal or a liberal approach. This is a positivist approach that states that judges do not make

laws; they merely interpret or declare it.

The courts in Malaysia are the guardian of fundamental liberties, as envisaged by the Reid

Commission. It gave the courts the right of judicial review and the task of interpreting the Federal

Constitution. The recommendations of the Reid Commission appear as Articles 4, 128, and 130 of

the Federal Constitution.

As for the application of common law in Malaysia, Section 5 of the Criminal Procedure Code

states that English law shall be applied in cases where no specific legislation has been enacted.

Similarly, in the context of civil law, Sections 3 and 5 of the Civil Law Act allows for the application of

English common law, equity rules, and statutes in Malaysian civil cases where no specific laws have

been made.33 In 2007, the then Chief Justice of Malaysia, Ahmad Fairuz Abdul Halim questioned to

need to resort to the English common law despite Malaysia having already been independent for 50

years.34

32 Article 121(1)(a) of the Federal Constitution33 http://en.wikipedia.org/wiki/Law_of_Malaysia#Common_law34 The Star Malaysia, August 22, 2007.

In Malaysia, the law is not just found in legislations but also in past decided cases by the

courts. The courts referred here are in the context of the superior courts which are the Federal

Court, the Court of appeal, and The Two High Courts. Only the decisions of these courts are the

sources of law. This is parallel to the concept of stare decisis practised in common law countries.

Stare decisis works in two ways, vertical (A court is bound to follow the decisions of higher courts)

and horizontal (some courts are bound by their own prior decisions of a court of the same level,

whether past or present, if any).

The federal judiciary is 200 years old. The primary function of judges is to ensure a fair trial.

In the adversarial mode of trial under the common law tradition applicable in Malaysia, the judge

acts as a referee, making sure that the rules of evidence and procedure are followed, and deciding

which party wins. Judges have the duty to adjudicate not only disputes between individuals but also

disputes between individuals and the government.

Like the judiciary, the legal profession is of English origin. However, unlike the English legal

system which historically is divided into two separate branches (barristers and solicitors), no such

division exists in the Malaysian legal profession. Malaysian legal practitioners do the work done by

English barristers and solicitors.

In conclusion, though Malaysia has some small but significant deviation from the traditional

practices of common law, it conforms mostly to the accepted and majority of features that most

countries with common law as their legal system. The effectiveness of the Malaysian legal system is

fair, considering its long history of courts, judges, and lawyers. The Malaysian Bar is also an active

component in the mechanics of Malaysian Legal system, appearing in the media and does not

remain silent when there are matters to be dealt with on their part.

There are voices suggesting that it is about time for a Malaysian common law, and some

even want to revolutionise the legal system in Malaysia by replacing it with the Syariah practised in

most Islamic countries. These ideas, though very tantalizing, careful consideration of the sensitivity

of the various races and ethnic groups in Malaysia needs to be taken into account.

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