Difference Between Common Law System and Civil Law System (LLB 5 Years Punjab University Pakistan)
Common Law System
Countries following a common law system are typically those that were former British colonies or protectorates, including the United States.
Features of a common law system include:
- No Written form:
- There is not always a written constitution or codified laws;
- Judicial decisions are binding:
- Decisions of the highest court can generally only be overturned by that same court or through legislation;
- Extensive freedom of contract:
- few provisions are implied into the contract by law (although provisions seeking to protect private consumers may be implied);
- General rule:
- everything is permitted that is not expressly prohibited by law.
A common law system is less prescriptive than a civil law system. A government may therefore wish to enshrine protections of its citizens in specific legislation related to the infrastructure program being contemplated. For example, it may wish to prohibit the service provider from cutting off the water or electricity supply of bad payers or may require that documents related to the transaction be disclosed under a freedom of information act. There may also be legal requirements to imply into a contract in equal bargaining provisions where one party is in a much stronger bargaining position than the other.
There are few provisions implied into a contract under the common law system – it is therefore important to set out ALL the terms governing the relationship between the parties to a contract in the contract itself. This will often result in a contract being longer than one in a civil law country.
Countries following a civil law system are typically those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America. Most of the Central and Eastern European and East Asian countries also follow a civil law structure.
The civil law system is a codified system of law. It takes its origins from Roman law. Features of a civil law system include:
- Written constitution:
- There is generally a written constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law and constitutional law) enshrining basic rights and duties; administrative law is however usually less codified and administrative court judges tend to behave more like common law judges;
- legislative enactments binding:
- Only legislative enactments are considered binding for all. There is little scope for judge-made law in civil, criminal and commercial courts, although in practice judges tend to follow previous judicial decisions; constitutional and administrative courts can nullify laws and regulations and their decisions in such cases are binding for all.
- writings of legal scholars:
- In some civil law systems, e.g., Germany, writings of legal scholars have significant influence on the courts;
- Courts specific to the underlying codes:
- there are therefore usually separate constitutional court, administrative court and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code;
- Less freedom of contract:
- many provisions are implied into a contract by law and parties cannot contract out of certain provisions.
A civil law system is generally more prescriptive than a common law system. However, a government will still need to consider whether specific legislation is required to either limit the scope of a certain restriction to allow a successful infrastructure project, or may require specific legislation for a sector. Please go to Legislation and Regulation and “Organizing Government to think PPP” sections for more information on this.
There are a number of provisions implied into a contract under the civil law system – less importance is generally placed on setting out ALL the terms governing the relationship between the parties to a contract in the contract itself as inadequacies or ambiguities can be remedied or resolved by operation of law. This will often result in a contract being shorter than one in a common law country.
It is also important to note in the area of infrastructure that certain forms of infrastructure projects are referred to by well-defined legal concepts in civil law jurisdictions. Concessions and Affermage have a definite technical meaning and structure to them that may not be understood or applied in a common law country. Care should be taken, therefore, in applying these terms loosely. This is further considered under Agreements.
Set out below are a few key differences between common law and civil law jurisdictions.
|Not binding on 3rd parties; however, administrative and constitutional court decisions on laws and regulations binding on all
|Writings of legal scholars
|Significant influence in some civil law jurisdictions
|Freedom of contract
|Extensive – only a few provisions implied by law into contractual relationship
|More limited – a number of provisions implied by law into contractual relationship
|Court system applicable
to PPP projects
|In most cases contractual relationship is subject to private law and courts that
deal with these issues
|Most PPP arrangements (e.g. concessions) are seen as relating to a public service and subject to public administrative law administered by administrative courts
passed by autonoums power, federal system of government- common law
passed by parliament, more powerful- civil law
Common Law Countries:
- The United States
Civil Law Countries: