Common law vs. civil law

Humans form communities – that is one of our defining (and best) characteristics.  In order to coexist peacefully, we must agree on a set of rules to govern our interactions. Yet, different communities don’t always go about it the same way.

Some adopt ‘common law’, which takes the approach that all behaviours are permitted, except for those deemed to be harmful, which are then specificly forbidden under the law.  This suggests an underlying philosophy that each person is a free, independent individual.  People ought to be free to act according to their will, and only those behaviours that infringe upon the rights of other individuals within the community to enjoy thier freedoms are forbidden. The goal of laws is to ensure all individual members of the society are able to exercise their freedoms as much as possible.

Communities which develop one of the forms of ‘Civil law’ have a different point of view.  They specifically list the behaviours which are acceptable to the society and permits them, all others are forbidden.  This suggests a philosophy that it is ‘the society’ which is the ‘basic unit of worth’, not the ‘individual’.  As such, it is the goal for the laws to protect the society.

This is a really big philosophical difference. 

It seems to me that common law promotes individualism, while civil law seems more focused on collectivism.

Of course, this is a major simplification.  Also, there are several forms of civil law. This is not intended to be an exhaustive description…  Rather, it is meant to explore the differences in the philosophical undercurrents between societies which choose to govern themselves under civil or common law.  It is not meant to look at the specifics as they are, but at the patterns of thought that led to the differing attitudes of how we ‘ought to’ govern ourselves.

Common law (in its idealized state) sees the individual as the empowered one, the one with inherrent rights who chooses to lend some freedoms to the state in order to create a society.  The law is loath to interfere with these rights and freedoms of each one of its citizens and will only curb them with great reluctance.  It could be summed up by the sentiment: 

‘Upholding the rights of the one ensures the rights of the many.’

Civil law sees the society as the one with all the power.  ‘These are (or ‘ought to be’)  the customs of our society, thus codified here into law.  Do not stray outside of these behaviours, or you will have to answer to the state.’  And while many countries that practice civil law have accepted that an accused individual has the right to a fair trial, including a presumption of innocence, not all of them do.  It could be summed up by the sentiment:

‘Every one must adhere to these rules, because they are in the best interest of the society.’

Many modern countries do incorporate some aspects of both philosophies.  Rather than opposite sides of a coin, I see these as different ends of a continuous philosophical spectrum.  Most countries fall somewhere within this spectrum, and may move along it in one direction or another with time.

Yet, regardless where along this spectrum a particular state’s legal system lies at any specific time, these underlying philosophies will influence its attitude towards its citizens.

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