The majority of legal systems from around the world can be classified as either a common law system or a civil law system, although the existence of religious and customary systems must be noted. Despite several criticisms of the classification, the division is still a useful one due to the notable differences between the two systems. Increased globalisation and the existence of hybrid legal systems, such as those found in Quebec or Scotland, along with and the sharing of legal ideas and principles between legal systems show that the classic division between common law and civil law is not as clear as it once was.
“After all that is the beauty of the common law; it is a maze not a motorway”Morris v C.W. Martin & Sons Ltd  2 All E.R. 725
Although difficult to define succinctly, the common law is summarised perfectly by this statement from Lord Diplock. It is a legal system in which statutory legislation begins as the starting point for a law. This legislation is supplemented and transformed over time by subsequent case law, known as precedent, that is often applied to very specific situations. This dynamic element of precedent enables the common law to easily adapt and change to new situations as, for example, society or technology evolves without the need for intervention from the legislator which can take a substantial length of time.
Civil law is a legal system that is largely developed from Roman Law with the most distinctive feature of a civil law system being legal codes. These are large texts that are very general and applicable to many situations with the most famous example being the Napoleonic Civil Code of 1804.
It must be noted however that although codification is a key feature of civil law, it is not prevalent in all civil law systems. It has been argued that this codification is what helps enable civil law systems to be more accessible to the general public.
Role of the Judiciary
In common law systems the judge has emerged as an entity that has the power to create law. Despite the role of the judge differing heavily within common law systems, the power of the judiciary remains a standout feature of common legal systems.
In the United States, for example, the Supreme Court can declare legislation not to be valid law if it is deemed to be unconstitutional. In the United Kingdom however, the Supreme Court can only declare legislation to be incompatible with the Human Rights Act 1998 which does not affect the validity of the legislation itself.
In contrast to common law systems, the role of the judge is largely diminished with greater emphasis being placed on the codified law. The preconception that the judge is redundant in civil law systems is not true as, in France for example, ‘la jurisprudence’ of the Cour de Cassation must be followed in subsequent rulings.
Accessibility to Justice
English common law arguably cannot be considered to be an accessible legal system. With the common law being rooted in elitism, it is often hard for the layperson to understand both legislation and precedent due to the complicated legal language used.
In addition to this, even accessing the law is very difficult. On the UK government website large amounts of legislation remain to be updated. Accessing the case law is also difficult as the government itself does not provide publication of law reports. Although a database of cases is provided by the charity BAILII, it is significantly inferior compared to the private providers and the public are at a significant disadvantage.
By contrast civil law is much more accessible. The French government website provides a comprehensive database of the codes that are written in a style that is easier to understand, also ensuring there is a greater transparency of the judicial process.
The Best Law?
It is unlikely that any legal system in any country could be considered to be perfect, there will always be flaws and improvements that can be made to it. Through the increased globalisation during the twentieth century and the sharing of legal ideas, legal systems from different countries are cooperating in order to try and achieve the best law possible.
In the English case of White v Jones ( 1 All E.R. 691) reasoning from civil law countries, notably Germany, was used in order to influence the judgement on professional negligence. Furthermore the growth of international organisations has seen the conclusion of conventions, such as the CISG (Vienna Convention on Contracts for the International Sale of Goods 1980), which aim to eliminate differences between the common and civil legal systems in an attempt to harmonise the law.
The fluidity and adaptability of the common law is one of its greatest strengths however due to its complex nature it is often difficult to understand. Conversely the accessibility of civil law systems place great emphasis on the law being open to everyone, with very broadly applicable law. Neither system is without its flaws and elements can be selected from both systems in order to achieve the best possible law.
This article has been prepared for informational purposes only. It is not a substitute for legal advice addressed to particular circumstances. You should not take or refrain from taking any legal action based upon the information contained herein without first seeking professional, individualized counsel based upon your own circumstances. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
Information by ALARIS AVOCATS, English speaking lawyers in France (Paris) specialized in French labor law, especially any kinds of Social Plans, dismissal procedures and labor contract clauses.