Introduction
The world contains a vast number of various national legal systems.Footnote 1 Differences between the diverse systems are not always of the same order. The diversity of laws, languages, and forms in which they are expressed, as well as differences in social organizations and cultures, makes it difficult to compare various legal cultures and systems. The most convenient way to analyze those differences is to group all the laws in legal systems by using specific criteria and categories.
This text discusses similarities, differences, and tendencies of convergence between two main legal systems, common law and civil law. It attempts to provide a broader picture based on the general features of these two legal systems without addressing specific differences in substantive and procedural law.Footnote 2
The text aims to (i) identify the main conceptual differences between common law and civil law and (ii) explore the possibilities of convergence between these two legal systems....
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Notes
- 1.
According to Zimmermann there are “as many legal systems as there are national states” (Zimmermann 1996, 580).
- 2.
- 3.
The term “civil law” is derived from the Latin expression ius civile, and it has two meanings: in its narrow meaning, it designates the law related to the areas covered by the civil codes. The broader meaning relates to the legal systems based on codes as contrasted to the common law system. In this paper, the broader meaning of civil law shall be used.
- 4.
The term “continental law” is also used, especially in civil law countries.
- 5.
Jurisprudence constante is a legal doctrine according to which a long series of previous decisions applying a particular rule of law carries great weight and may be determinative in subsequent cases. Jurisprudence constante is recognized in most civil law jurisdictions.
- 6.
Precedent (Lat. praecedens – “before in time”) is the principle in the law of using the past to assist in current interpretation and decision-making.
- 7.
Only in 1898 was the binding force of precedents accepted in case London Tramways Co v London County Council [1898] AC 375.
- 8.
Lord Woolf in R v Simpson, [2004] QB 118, 128:
rules as to precedent reflect the practice of the courts and are of considerable importance because of their role in achieving the appropriate degree of certainty as to the law, but they should not be regarded as so rigid that they cannot develop in order to meet contemporary needs.
- 9.
“What is needed today is a dynamic, or at least an activist, judiciary, ready and willing to develop the law to fit the changing times” (Devlin 1979, 1).
- 10.
Article 5 of the French Civil Code: “Judges are forbidden to decide cases submitted to them by way of general and regulatory provisions.”
- 11.
Lord Gardiner’s statement in the House of Lords, July 26, 1966 [1966] 1 WLR 1234.
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Pejović, Č. (2023). Common Law and Civil Law Systems: A Comparison. In: Sellers, M., Kirste, S. (eds) Encyclopedia of the Philosophy of Law and Social Philosophy. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6519-1_1119
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