On the difference between Common Law &

Romano Germanic Law (Civil Law)

By Ismail Jama

Common Law is a legal tradition that originated in England from the 11th
Century onwards. Civil or Romano Germanic Law developed mainly in
Continental Europe. There are a number of distinctive features that
distinguishes Common Law from Romano Germanic Law.

1. Source of Law: The sources of law in Common law states appear, for
most part, in reported judgements otherwise known as judicial
precedence. Common Law focuses more on judge-made case laws.
Sources of Common law also include legislations and codified
statutes which are provided with specific applications and
exceptions. In Romano Germanic law, sources of law are compiled
and codified into an abstract collection for legal reference. Codes in
civil law states are mostly succinct and are not provided with
definitions, clarifications or exceptions.

2. Principle of Precedents: In Common law states, judges find a general

principle in each of the cases and these principles are relocated into
a current dispute that needs to be adjudicated. Common law
promotes the doctrine of stare decisis which literally means stick to
decisions. In Civil law states, judges are bound to codes and reason,
regardless of judicial decisions made in previous cases with similar
facts.

3. Method of Legal Thinking: In Common law states, courts reason from

case to case by focusing on each case explicitly and subsequently,
developing a principle or precedence. Common law prioritizes
jurisprudence over doctrines. In Civil law, the method of legal
thinking in courts focuses more on developing abstract principles,
regardless of previous similar cases, and these principles are applied
to the facts of a case by a process of consideration. In civil law, the
principles are made to solve problems prior to their occurrence. In
civil law, doctrines have a priority over jurisprudence. This is mainly
 due to the fact that in Civil law countries courts are strictly
subjected to applying the laws passed by the legislative body
(Montesquieus Theory). On the other hand, in common law states,
judge-made law or precedence forms the basis and the core of the
legal system.

4. Function of Doctrine: In Common law countries, doctrines are

exploited to find differences and similarities in cases decided
beforehand and as a result specific rules are extracted from these
decided cases. In Civil law states, doctrines are used by lawyers,
jurists and judges as guidelines for managing and settling on
subsequent cases. Doctrines develop basic rules and principles in
which practitioners and judges have to abide by when making a
judicial decision.

5. Appointment of Judges: In Common law countries, judges must be

quite old of age and are typically selected and appointed from
among veteran lawyers or legal practitioners. In Civil law countries,
recently graduated, highly skilled but inexperienced lawyers are
appointed to adjudicate cases in lower courts immediately after
their recruitment. In Civil law states, for instance Germany, the age
limit for being a judge is 35 years old which is quite young in
Common law countries.

6. Procedural Differences: In Common law countries, the judges duty

in court proceedings is only to handle the proceedings, to reassess
all the facts of the case and the legal views presented to him by the
attorney and finally cite a verdict. Thus, in Common law states, the
proceedings focuses more on the behaviour of the attorney. A highly
skilled attorney with great skills of persuasion may sway a judge
into ruling for his or her favour. In civil law court proceedings, judges
have a more active role to play. Civil law judges conduct many
functions, in which attorneys in Common law states are responsible
for. For example, civil law judges are responsible for oral questioning
of the witness when taking evidence. Additionally, in common law
 countries, each lawyer can bring forward their own witness and the
judge only has to decide which witness is more believable. On the
other hand, a Romano Germanic law court proceeding requires the
judge to appoint one witness of his or her choice and then forced to
accept the witnesss decision.

7. Purpose of Proceedings: In Common law states, both litigants in a

court proceeding are required to find out facts of the case,
subsequently presenting their facts to the judge for him or her to
make a verdict. In Civil law proceedings, the purpose is simply to
settle disputes. This is one of the reasons why lawyers in Civil law
litigation have an inadequate role when litigating.

In conclusion, the administration of justice in Romano Germanic law

focuses more on codified, abstract principles in which judges have to
abide when making a judicial decision. The codes in civil law states are
concise, amorphous and are made to solve problems even before the
appearance of the problems. On the other hand, Common law focuses
more on judicial precedence, where each case is examined on its own and
as a result a principle is formed. Consequently, these principles are
harnessed by judges to adjudicate on cases that come before them.