What is a legal system ?
A legal system consists of the laws, the courts and the law-making institutions in a country. Each country has its own legal system. Some legal systems are organized on the basis of a written constitution (e.g. the United States), others have constitutional systems not resulting from a single written text (e.g. the United Kingdom).
The legal systems in the world are classified into groups, based on common characteristics and traditions. Two groups of legal systems dominate in the world: the Civil law systems, and the Anglo-American common law systems.
The civil law systems are based on Roman law and on the codes enacted in continental Europe; common law systems are based on English common law;
The civil law systems use codifications as their law-making style, working from general concepts and providing solutions to individual problems. They place more emphasis on statutory law. The Anglo-American legal systems give a broader role to case law and have developed complex technical instruments to apply, interpret and modify such case law. In Most common law systems, great importance is given to the decisions of judges to be followed in later, similar cases (precedents). The decisions of higher courts are binding on lower courts, and much of the law is left to the courts to develop.
What are the sources of law in common and civil law systems ?
In civil law countries, legislation is the principal source of law. At the top of the hierarchy is the Constitution, followed by codes and other legislation (emanating from the executive or parliamentary branches depending upon the legal system), then executive decrees, and other regulations, followed by local ordinances. In Civil law countries, statutes provide the core of the law – general principles are systematically exposed in codes and particular statutes complement them. This reliance on codes and laws is a central characteristic of the civil law system. International treaties and conventions are also sources of law in civil law countries. Most civil law countries are “monist” meaning that when a civil law country ratifies a treaty, it automatically becomes part of domestic law. This means that a judge can automatically apply it and a party in court can rely on international law in proceedings. “Doctrine” which is the writing of prominent legal scholars, is considered an important authority in civil law countries. Doctrine is very influential when the law is unsettled.
In common law countries, the Constitution is the highest source of law but is only applicable when there is government action. Statutory law applies to individuals but is inferior to constitutional law. Case law is law made by judges when they rule on the facts of a case. Although case law is technically inferior to statutory law, judges must interpret statutes and the Constitution, so case law can be the most powerful source of law. Statutes complete case law, which later constitutes the core of the law expressed through specific rules applying to specific facts. The final source of law in common law countries is international law, namely treaties and conventions. Most common law countries are “dualist.” In these countries, international law is seen as a separate body of law that only begins to apply domestically when it is converted into domestic legislation by the legislature.
What is the distinctive characteristic of the common law and the civil law systems?
In civil law countries, the law is based on legislation. These are called statutory laws’. The judges and courts make their decisions based on legislative codes. They have to work on the basis of general rules and principles written in a code of laws. By contrast, in the common law system, much of the law is made by judges’ decisions, called precedents. This means that if a similar case has been resolved by a court in the past, a court is bound to follow the reasoning used in the prior decision. The doctrine of stare decisis (precedent by courts) is the major difference to codified Civil Law systems. Stare Decisis is a principle that requires a lower court judge to follow previously established precedents from a higher court.
Julien Coomlan Hounkpe 