The laws prevailing in India are relatively complex because, it maintains an amalgam legal system with a mixture of civil, common law and criminal and customary within the legal framework inbred from the colonial era and several legislations, previously introduced by the Britishers are still in effect, in modified forms today. In this article, we would be dealing in detail about the concept of Civil Law and Common Law and what is the difference between civil law and common law.
Three of the most significant difference between civil law and common law is that, firstly the civil law basically deals with actions which are not crime and whereas common law is known as the Judicial precedent or the judge-made law or case law. Whereas according to the second difference between civil law and common law is that, civil law is a codified law where is common law is an uncodified law.
Lastly, according to the third difference between civil law and common law, Judicial Precedents are binding in common law. In contrast, the judicial decisions do not have a binding effect under civil law.
Concept of Civil Laws
The concept of civil laws simply means the law which deals with those actions which are not a crime. Further, all the civil matters are regulated and governed by the provisions of the civil procedure code and are heard by the civil courts. Moreover, the functioning of the civil courts is also regulated by the provision of the Civil Procedure Code (C.P.C).
Further, the Civil Law comprises a body of rules, regulations, procedures, appeals, review, reference, and judicial precedents that helps in deciding the various non-criminal disputes. Furthermore, these disputes either arises between the individuals or organizations and can be on a diversity of issues like marriage conflicts, private matters, ordinary issues, private matters, etc.
Moreover, it is significant to note that the Indian civil laws have become complex in approach as each religion having its own specific rules, and regulations to follow and also Indian laws are varying as per the needs of the modern world after independence. Example - the domestic violence act which was passed in the year 2005.
Lastly, Civil law can be further be bifurcated into Property Law, Contract law, Consumer Law, Real Estate Law, and Family law.
Concept of Common Laws
The concept of Common Law is also considered as the Judicial precedent or the judge-made law or case law. Further, common law is a body of law resultant from the judicial decision of the courts and similar tribunals. Further, the notion of common law can be outlined back to have its basis in England. Moreover, it came to India together with the infiltration of the British East India Company.
Moreover, universal consent and peoples practice from time immemorial moulded the base of Common Law. Hence, the common law is also termed as the judicial precedent or case law. Also, this was typically seen in the UK, where if a case was taken up in the court of law and the judge gave the decision, then that said decision was recognized as a precedent for the future cases.
While in the case of statutory law, laws are made by keeping in view the future cases, which may arise. Further. The statutes governing both criminal and civil justice such as the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, Indian Evidence Act, 1872, and the Code of Civil Procedure, 1908 and the principles of law, accumulated in these codes, we mainly derived them, from the Common Law principles.
Further, one thing can be said about the codes mentioned above is that they have survived the test of time that too with minimum amendments. Furthermore, as the names describe, it is common to all. Today more than one-third of the world’s population lives in the jurisdiction of the systems of the common law. Lastly, an example of common law is the rule made by a judge that the people have a duty and obligation to read contracts before signing.
What is the difference between Civil Law and Criminal Law?
The following listed are the basic difference between civil law and criminal law –
Feature
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Common Law
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Civil Law
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Written constitution
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Not always
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Always
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Judicial decisions
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Judicial Precedents are Binding in nature
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Not binding on the 3rd parties; however, the constitutional and administrative court decisions on laws and regulations are binding on all.
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Writings of legal scholars
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Little influence
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Have a Significant influence in some of the civil law jurisdictions
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Following Countries
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USA, India, Canada, United Kingdom, etc.
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China, Italy, Japan, France, Germany, Spain, etc.
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Judge-made Laws
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Yes, although the Parliament or the legislator makes the laws, the judges sitting in the courts are given the power and authority to make laws as well, and then the judgements of the courts develop as the binding laws of the land.
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No
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Basis of Origin
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Common Law is based on English Heritage
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Civil Law has Roman Heritage.
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Codification
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Uncodified
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Codified
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Flexibility
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More flexible in approach
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Rigid in approach
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Examples
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Law of Torts
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Property Law, Contract law, Consumer Law, Real Estate Law and Family law
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Conclusion
In my view, a civil law system is normally more prescriptive than the common law system. Moreover, the only difference between civil law and common law, due to which I will choose common law system is that, in this system, although the legislators create the laws,, but it is up to judges whether to rely on precedents set by the previous courts or to interpret the prescribed laws and apply them to individual cases. Whereas in a civil law system, a judge just establishes the facts of a case and put on remedies specified in the codified law.
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