Tata Institute of Social Science, Deonar, Mumbai

Assistant Professor: Asha Sundaram

Critical analysis

on legal research in civil law countries and common law

countries.

Submitted by:
Name: Sheethal
School of Law, Rights and Constitutional Governance
Roll No: 2013LLM010
Date: 18.11.2013

Critical analysis

on legal research in

civil law countries and

common law countries.

Most countries today follow one of two major legal traditions ie common
law or civil law. The common law tradition emerged in England during the
Middle Ages and was applied within British colonies across continents,
whereas The civil law tradition developed in continental Europe at the
same time and was applied in the colonies of European imperial powers
such as Spain and Portugal.
Glimpse of common law and civil law system
Common law is a peculiarly English development. Before the Norman
conquest, different rules and customs applied in different regions of the
country. But after 1066 monarchs began to unite both the country and its
laws using the kings court. Justices created a common law by drawing on
customs across the country and rulings by monarchs. These rules
developed organically and were rarely written down. By contrast,
European rulers drew on Roman law, and in particular a compilation of
rules issued by the emperor Justinian in the 6th century that was
rediscovered in 11th-century Italy. With the Enlightenment of the 18th
century, rulers in various continental countries sought to produce
comprehensive legal codes.
Civil Law is the most widespread type of legal system in the world, applied
in various forms in approximately 150 countries. It is also referred to as
European continental law. The civil law system is derived mainly from the
Roman Corpus Juris Civilus, (Body of Civil Law), a collection of laws and
legal interpretations compiled under the East Roman (Byzantine) Emperor
Justinian I between A.D. 528 and 565. The major feature of civil law
systems is that the laws are organized into systematic written codes. In
civil law the sources recognized as authoritative are principally legislation
-

especially

codifications

in

constitutions

or

statutes

enacted

by

governments - and secondarily, custom. The civil law systems in some

countries are based on more than one code1.
According to the CIA World Fact book puts the numbers at 150 and 80
countries respectively, Civil-law systems are more widespread than
common-law systems. Common-law systems are mostly found in countries
that are former English colonies or have been influenced by the AngloSaxon tradition, such as Australia, India, Canada and the United States.
Legal minds in civil-law jurisdictions like to think that their system is more
stable and fairer than common-law systems, because laws are stated
explicitly and are easier to discern.
Major difference in common and civil legal practises lies in the source of
law. common-law systems make extensive use of statutes, judicial cases
are regarded as the most important source of law, which gives judges an
active role in developing rules. Whereas In civil-law systems codes and
statutes are designed to cover all eventualities and judges have a limited
role of applying the law to the case in hand. Past judgments are no more
than loose guides. When it comes to court cases, judges in civil-law
systems tend towards being investigators, while their peers in commonlaw systems act as arbiters between parties that present their arguments.
Civil law jurisdictions and common law jurisdictions have differences.
Legal reasoning in civil law jurisdictions applies deductive, rather than
inductive, reasoning in the process of resolving legal disputes. There is a
presupposition that the starting point of study in all civil law jurisdictions
is legislation or a Civil Code and that the starting point in common law
jurisdictions is cases.
Scope of legal research in common law and civil law system
Significance of legislation and cases are different in the two systems. In a
civil law system, laws are codified and judges simply apply it to a fact
pattern. Judges in civil law jurisdictions are not bound by precedent. Under
1

the doctrine of stare decisis in common law jurisdictions, a prior decision

by a court is binding on any courts deciding future cases. While it is true
that the doctrine of stare decisis compels common law lawyers to treat
cases as law, the lack of stare decisis in civil law jurisdictions does not
diminish the relevance of cases in the legal research process. Moreover,
statutory law and legislation are growing in importance in common law
jurisdictions. The reality is that many lawyers in civil law jurisdictions do
begin their research in cases and many lawyers in common law
jurisdictions begin their research in legislation. Attorneys in both
jurisdictions ultimately must consult all sources of law to do thorough
research.
In civil law jurisdictions that reject stare decisis, cases constitute only
persuasive authority. Some civil law judges cite and interpret Civil Code
articles, legislation, other cases, treatises, regulations and administrative
decisions. Many lawyers in civil law jurisdictions do word searches on fact
patterns to find the Civil Code articles and legislation, etc., that have been
applied to those facts by other judges. In the past, there was a
presupposition that only lawyers in common law jurisdictions would search
using words representing fact patterns.
At this juncture, it is necessary to have some broad, but pertinent,
observations about the nature and scope of legal research in the common
law and civil law systems.
In the common law system, Legislature enacts substantive law. Executive
wing

of

State,

drawing

authorization

from

substantive

law,

supplements the substantive law in the form of rules, regulations,

statutory orders, notifications and byelaws. While courts, as and when
called upon, interpret the law and gives finality to it through their judicial
pronouncements. Courts, particularly higher ones, however, do not only
apply law to the facts and issues brought and agitated before them
but also, through their judicial pronouncements, make law. 2 They are,
2

generally, bestowed with wide judicial discretion. They are empowered to

determine legality as well as adjudicate finality of law or legal
provision. The lower courts are bound by precedent. In the common law
system, therefore, the basic assumption is that if there is a judicial
decision in the past having facts and legal issues similar to those in the
case currently before the court, the outcome of the past case should
control the outcome of the present case. Therefore, in the common law
system Legislature, Executive as well as Judiciary do constitute source of
law. A legal researcher, with a view to understanding law on a particular
topic or subject, therefore has to locate, appreciate and analyze apt
Acts of Parliament, subsidiary legislative instruments, if any, and judicial
pronouncements. He has to focus his attention on the primary source
materials, like the Constitution and Statutes (along with statutory
instruments), and leading judicial pronouncements (the precedents).
By contrast, in the civil law system, Acts of Parliament, supplemented by
appropriate Regulations and Directives, if any, do constitute primary
sources of law. Courts are required only to apply them. In no way, they
are expected to make law through their judicial pronouncements. Hence,
the law of precedent, unlike in common law jurisdictions, is irrelevant.
Nevertheless, a judicial statement of a higher court may have an
inspirational or persuasive value in terms of its reasoning. In civil law
system, a legal researcher, with a view understanding law on a topic,
therefore, has to merely concentrate on the primary sources of law.
However, there is hardly any material differences in the nature and scope
of legal research in these two legal systems- the common law and the civil
law system. In both the systems, broad strategy and utility of legal
research is alike. They only differ in their emphasis on the material
required/used for carrying out legal research. A legal researcher from the
common law jurisdiction relies heavily upon, and gives importance to,
appropriate statutory materials (the Constitution, statutes and other
statutory instruments) and case reports (including case comments and
case digests) for ascertaining appreciating law on her topic or area of

research. Whereas a legal researcher from a civil law system focuses and
prominently relies on the statutory materials for ascertaining and
appreciating law. Under both the legal systems, a researcher has to resort
to identical methods of data collection and of analysis when he is
interested in highlighting social dimension of law or gap between the
legal idealism and social reality or assessing impact of law on the social
behavioral pattern.
Thus it is very much relevant to understand that it is not the system or
mechanism which matters, but the effectiveness of the system. The larger
goal on which this whole legal research should rely on should be its
approach towards the marginalized and vulnerable groups of the society.
Bibliography and References
1. Benjamin Cardozo, The Nature of Judicial Process , 1947 Yale U.
Press (1947).
2. John Barker, Research Myths About Common Law & Civil Law
Jurisdictions, Oct. 18, 2010 at ,
http://solutions.wolterskluwer.com/blog/2010/10/research-mythsabout-common-law-civil-law-jurisdictions/.
3. S.B, What Is the Difference Between Common and Civil Law?, The
Economist, July 16, 2013 at ,
http://www.economist.com/blogs/economistexplains/2013/07/economist-explains-10.
4. The Common Law and Civil Law Traditions (School of Law, Univ. of
California, Berkely 2010) [hereinafter The Robbin Collection],
http://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTra
ditions.html.
5. The World Fact Book (Cent. Intelligence Agency 2010),
https://www.cia.gov/library/publications/the-worldfactbook/fields/2100.html.
6. Prof Khushal Vibhute & Filipos Aynalem, Legal Research Methods
Teaching Material , 2009 Just. & Legal Sys. Res. Inst. (2009).