Litigation under a Codified System (Civil Law) vs Common Law

Whilst the legal systems of the world can vary greatly, they can generally be grouped into either civil law or common law.

Civil law jurisdictions rely on a codified system, where core principles are written into a referable document. Common law jurisdictions (such as England and Wales), however, rely on case law; the development of precedent set by judges in previous cases.

Civil vs Common Law

Both systems of law can greatly affect how business is carried out in different jurisdictions. This variation is one reason why international arbitration (instead of litigation) is so widely used in disputes with a cross-border element.

English common law is used in jurisdictions across the world and creates a predictable, consistent body of law. This article looks at the key differences between litigating in a common law environment, versus litigating in codified systems.

1. The role of lawyers

Given the UK’s reputation as a home for some of the world’s top law firms, the role of lawyers in a common law jurisdiction is perhaps clear.

In common law, lawyers take a more adversarial role. It is the lawyer, and not the judge, that questions witnesses, produces evidence and presents a case based on evidence they have gathered.

A critical difference in civil law jurisdictions is that lawyers take a more inquisitorial role. They present arguments based on the evidence the court finds, answer questions that the judge requires and essentially assisting the court with building their client’s case.

2. The role of judges

As mentioned above, in civil law, it is not the lawyers who act as the main investigator for their client’s case, but the judge. The judge’s role is, essentially, to establish the facts of the case and apply the relevant code.

In common law, the judge makes rulings based on the arguments presented by each party. They look at the facts of each case, more as a neutral third party than as a chief investigator. Lawyers in common law jurisdictions take a much more key role in shaping their client’s case than a judge would.

3. The role of the jury

In a codified system of law, juries are virtually never involved in civil actions and are involved only in criminal cases. The opinion of the jury doesn’t necessarily need to be unanimous either, although laws on this vary by country (and by state, in some cases).

In common law systems, like England and Wales, juries are mainly used in criminal cases (where a possible sentence of 6 months or longer might apply), and some civil cases (libel and slander trials are perhaps the most prominent examples). In some jurisdictions, such as the USA, juries are used extensively in both civil and criminal cases.

4. Precedent

In civil law, it is the codification of the country’s laws that serves as the main reference point for judges, who decide on a ruling in a case based on what is written.

In common law, precedent is used to ensure more consistent (and therefore, fairer) decisions. A precedent becomes binding when the facts of the cases in question are sufficiently similar, and when the previous decision was made by a higher court.

5. Evidence

There are, of course, many differences between civil and common law jurisdictions surrounding how evidence is presented in litigation. This might include the admissibility of affidavits in civil law, or how the discovery process works.

A key difference in civil law is that, as the judge acts as the main investigator, court-ordered expert investigations can form a significant part of the trial. This is almost unheard of in common law, where parties might instead designate an expert witness, who is then cross-examined by the parties’ lawyers.

In disputes with a cross-border element, differing cultural interpretations of evidence (not to mention differences between civil or common law jurisdictions) can worry commercial parties.

As such, arbitration is usually preferred (over litigation) for commercial disputes, as parties can agree to their own rules of evidence.

Parties can also agree to choose the place of arbitration based on whichever jurisdiction (be it civil or common law) best suits their interests.

Summary

To briefly categorise the differences between civil and common law jurisdictions, one might rest on the ‘inquisitorial’ nature of civil law and the ‘adversarial’ nature of common law.

In reality, differences between jurisdictions can seem minimal to parties without good legal counsel, but nuanced and complex to those with a deeper understanding of international law.

As advocates of Alternative Dispute Resolution (ADR), and a team of highly experienced solicitors and barristers, we at Carlsons Solicitors will always advise in the best interests of our clients, to get them the results that they need.

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