Infernal Ramblings
A Malaysian Perspective on Politics, Society and Economics

Civil Law and Common Law

Written by johnleemk on 5:07:32 pm May 19, 2007.

The difference between a system of civil law and common law is often not appreciated by those outside the legal profession. For the most part, knowing the difference between these legal systems is not relevant to our daily lives.

However, understanding how our laws are developed and enforced always has a relevance to the bigger picture of our society, for if we understand this, we understand how the laws we live by are made.

Part of the problem is that explaining the difference between a civil law system and a system of common law is not exactly easy. I remember a couple of years back when I was asked whether Singapore has a civil law or common law system — I tried to discern the difference from Wikipedia, and came away stumped.

In a sense, the meaning of "common law" should be obvious from phrases such as "common law wife" — this is law which exists by unwritten convention, not written statutes.

Meanwhile, a civil law system develops through an existing legislative process. This is a system followed by most countries around the world, especially in Europe, and so we can see a very neat contrast between the United Kingdom and its European neighbours.

The common law system is predominant throughout the Commonwealth of Nations, thanks to their shared British heritage. Most former British colonies derive their laws from the same common law as England (the common law is actually a thoroughly English creature — the Scots and Irish were not subject to this system).

Now, you might be scratching your head at this point, because virtually all former British colonies, and even Britain herself, have legislative bodies. Don't these legislatures make written laws?

Well, yes, they do. However, the old body of common law continues to coexist with written law (although the written civil law does override the common law when they come in conflict).

Moreover, the body of common law continues to develop. Common law develops from the judgments handed down by the judiciary. The English legal system (and thus the legal systems of most of its former colonies) is marked by a very strict following of judicial precedent.

This principle, known in Latin as stare decisis, means that the courts follow the judgments of courts above them in the hierarchy. They can deviate from these judgments creatively by distinguishing a particular situation, but otherwise, they have to follow precedent.

This of course confers quite a few benefits. I've touched on one of them before — the flexibility offered by the common law in wedge cases or grey areas. This flexibility is not easy to achieve under a civil law system, as only the legislature can modify the law if the law is unjust.

But at the same time, the common law is markedly inflexible. It is difficult to update common law to change with the times. For example, it was established in the early 19th century by Adams v Lindsell that an offer to make a contract takes effect the moment its acceptance is posted — not received.

This judgment, which was creatively used to correct the uniquely unjust situation of the Adams case, does not make much logic to the ears of the ordinary man — nor should it.

Similarly, another tenet of contract law according to the common law is that there must be consideration provided for any contract — I need to provide something for you to provide something else to me (a typical quid pro quo deal) unless the contract is written.

The problem is that in the case of unwritten contracts which should be enforced, there are times when the courts have had to lay down ridiculous judgments, declaring that, for example, a peppercorn counts as consideration.

With the development of the principle that a binding contract should have the intention to create legal relations in the early 20th century, the idea of consideration no longer has much use — and yet it remains.

Why? Because the courts are notorious for finding it difficult to retreat from the body of legal tradition which already exists. The legislature could act to change the law — as the legislative bodies of some former British colonies have done — but Parliamentarians are not known for caring about these obscure but nevertheless important details.

In a civil system, on the other hand, once a law has proven to be bad, it is amended or repealed. Because only the legislature can provide recourse in such a situation, there is no need to get one's hands dirty and file a lawsuit, hoping that it will reach the highest court of the land, and the judges here will be radical enough to depart from precedent.

Clearly, the common and civil law systems both have their advantages and disadvantages. Having been exposed to the common law system for much of my life, I must say I prefer it to a purely civil law system because of the flexibility that judicial precedent and statutory interpretation can offer judges.

Oh, and as for Singapore? I'm still not sure, but as far as I can ascertain, it operates under a common law system, and until a few decades ago, it was possible to appeal to the English Privy Council in a Singaporean case.

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Infernal Ramblings is a Malaysian website focusing on current events and sociopolitical issues. Its articles run the gamut from economics to society to education.

Infernal Ramblings is run by John Lee. For more, see the About section. If you have any questions or comments, do drop him a line.

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