Features of Civil Law System
Having its origin from Roman law, the civil law system is codified. Following are the features of the civil law system-
Based on specific codes, a written constitution exists in the civil law system. For instance, civil code, code under corporate law, administrative law, tax, and constitutional law. In these codes, certain rights, as well as duties, are provided.
The enactments made by the legislature have a binding effect on all. Most of the creation of the law is by legislatures making statutory law instead of law created based on precedent given by judges. The precedent here means following the doctrine of stare decisis. There is less scope for the law made by judges in the civil, criminal, or commercial court. Even though the judges practice following precedents, the administrative and constitutional courts have the power to set aside those laws and regulations.
There is a significant impact of legal scholars on the courts.
There are separate court systems for specific codes, such as the administrative court, civil court, and constitutional court, for interpreting and providing opinions concerning the legislation of these specific codes.
The civil law system provides less freedom concerning contracts where the parties cannot contract without following certain provisions.
The civil law system is more detailed and prescribed than the common law system.
The civil law system is an inquisitional model in which judges take an active role in the investigation.
There is an occasional use of juries. Generally, facts are decided by a judge or panel of judges and the application of the law.
The victims are those parties who have rights concerning their involvement, such as having their attorneys and filing the initial charges.
In this law system, the victim can bring claims concerning civil rights such as monetary damages within circumstances of criminal prosecution.
Working of Civil Law system
The legal codes that are drafted by the legislature have a significant impact on the civil law systems. As mentioned earlier, in comparison to the common law system, civil law states are detailed and prescriptive. There is continuous updating in legal codes specifying matters that can be taken to the court and methods to be followed for giving appropriate punishment.
To interpret the legal provisions of the statutes in the civil law system, there is more reliance on the legal scholars than the judges. The role of the judge in the civil law system is establishing facts concerning the case by analyzing and apply such law as necessary. This increases the importance of the legal scholars and the legislators drafting and interpreting the code in the civil law system. The role of a judge in a civil system differs from that of a role of a common law system. The judges in the civil law system can be categorized as magistrate and trial, or sitting judges. In the civil law system, the investigation of facts of a case is led by the magistrate to serve the best justice. Instances of civil law systems are mostly European countries, such as France, Germany, North, Central, and South America.
Difference between Civil law and Common law
The common law and civil laws systems are the results of two distinct approaches to legal procedure. The important principles and rules exist in the codes and statutes in civil law, which have significant application by courts instead of case laws. In the case of the common law system, the basis of the creation of law is the courts’ judicial decisions that lack conceptual structure. The court’s role is to apply the law, and the civil law system constitutes based on theory separation of powers wherein legislator has the task only to legislate. At the same time, the important task of creating the law lies with the courts of common law.
The primary distinction between the civil and common law systems is the binding impact of precedents. Courts of the civil law system are designated to decide the case by interpreting legal norms and applying the law for deciding the case. The common law system guides resolving similar disputes arising in the future along with deciding the disputes. The lower courts are bound by the interpretation of legislation provided by a certain court, which provides the basis for courts under common law to decide upon cases based on such interpretation of the legislation.
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