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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4 Responses to “Common law vs. civil law”

  1. The origin and nature of human rights « Xanthippa’s Chamberpot Says:

    […] it is phrased differently, it is very simlar to the different attitudes captured in ‘Common Law’ versus ‘Civil Law’ legal codes:  very roughly, the ‘Common Law’ would be more closely aligned with the […]

  2. Hartmut Says:

    I do not have a clue how this idea raised. The main different between “civil law” and “common law” is the way the law is created. “Civil Law” (in the post Code Napoleon sense) is given by a law maker (parliament etc.) and Common Law is developed out of a consecutive line of judgements.

    Both protect the rights of the individual or restrict those. Historically, the direct predecessor of modern Civil Law, the “Ius Commune”, the adaptation of Roman Law till the French Revolution, played an important role in protecting the individual – at least in the Holy Roman Empire via the Imperial Chamber Court.

    The modern adaptation of the Civil Law is based on the Human Rights, as e.g. expressed in the French Declaration of 1789 (still valid constitutional law in France), which state in Art. 4: “Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law.” A rule corresponding e.g. with the Roman Law rule of “volenti non fit injuria”; something, as shown in the Spanner trail the English Common Law denials.

    Xanthippa says:
    I do not disagree with what you are saying. The difference between the codes is not in the ‘rights’ but rather in the attitude where these originate. Under civil law, for a ‘right’ to exist, the state must ‘list’ it (in effect, approve it) – as is the case with the Constitutions you cite. Therefore, it is not a ‘right’ until the STATE makes it a ‘right’. In Common Law, ‘rights’ are not listed in any special spot (like a Constitution) because they are already presumed to exist with each individual.

    It is this ATTITUDE as to the ORIGIN of rights that I am trying to call attention to.

    You may note that in the quote you have brought up, it says: ‘These bounds may be determined only by law.’ That is the point – laws can change easily. As long as your rights emanate from ‘the state’ and they will ‘be determined by law’, then if the state legislates that you do not have the right to wear yellow on Tuesdays, you will not have that right. It will have ceased to exist.

    Under common law, you could challenge the law because it ‘breeches your rights’ – the rights originate with YOU. This would make no sense under the civil law code because once that law was passed, you ceased to have that right.

    I’m not sure if I am explaining it clearly…

  3. Hartmut Says:

    Xanthippa, I think you missed the highly complex debate in continental Europe, prior and after the French Revolution about the very nature of the state.

    Your are right, that some European constitutions (Netherlands, Denmark, Luxembourg, etc.) do have a guaranty of the human rights, as state-given. Others, following a original French idea, show an absolute different approach. They define the raison d’etre of the state in the Human Rights. In this constitutional thinking, the protection of the Human Right is basis of legitimate state. In other words: The Human Right do not exist, because the state declares those, but the state exists, because the state protects the Human Rights. If the state would not do so, the state would loose its legitimation. Such wording you could find the French Constitution of 1789, 1947 and 1958, the German Constitution of 1949 (where even this argumentation has brought one step further, that the abstract idea of the “Human Dignity” is seen as the source of the Human Rights and therefore the Human Dignity is seen as the raison d’etre of the state; an idea based on Immanuel Kant) or the Czech constitution of 1992 (to name a few).

    On the other hand in the UK, where in England the Common Law had his origin, the sole guaranty of the Human Rights, which Parliament can’t revoke, is based not in British law, but in international Treaties the UK has signed, namely the EU-Treaties and the European Convention of Human Rights. Contra this thinking the German postwar constitution explicit forbids any amendment to the constitution revoking the Human Rights: Something which is logic, following the idea of the Germany’s postwar constitution, that the Human Rights and the Human Dignity are the primary sources of the legitimation of the state.

    I do not think, we can pin liberty down to “Common Law” versus “Civil Law”. Perhaps it easier to pin this down to “Natural Law”, the believe that humans have by nature certain rights, because they are Humans, and opposite a “positive law”, which has a formalistic approach, that the sovereign, how ever this is (people, king, parliament, etc.), can define rights and duties according to his will by making law. This is at the end not a legal question, but a philosophical one – or what makes a Human Being a Human Being.

    Xanthippa says:
    What you say is correct – there are ‘civil law’ societies which are dedicated to protecting ‘human rights’ and which derive their ‘raison d’etre’ from them.

    However, that was NOT the point I was making here.

    Rather, it is the attitude that is created – the dynamics between the State and the Citizen – that are different between the two systems.

    In a ‘Civil Law’ based system, the Constitution LISTS what YOUR ‘Human Rights’ are. It lists ‘allowed’ behaviours. (Yes, I realize the reality is more complex – but I am describing the underlying principles!) In other words, your ‘rights’ are dependant on how well (or badly) the constitution is written.

    In other words, the citizen may ONLY enjoy the ‘rights’ which are recognized by the constitution and partake in behaviours specifically ‘permitted’ based on these rights.

    In practice – this might work. But it comes from the ‘attitude’ or ‘permitting’ – and THAT is the dynamic, the attitude, I am addressing here.

    As one retired Canadian (who advised 4 Prime Ministers) once put it: I do NOT want any constitution which LISTS what my ‘human rights’ are – because once it does, I will have lost every one of my ‘rights’ it did not ‘list’!!!

    And THAT is my point.


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