Editing Common law (section)

== Comparison with civil law ==

=== Civil law systems ===
{{main|Civil law (legal system)}}

[[File:Corpus Iuris Civilis 02.jpg|thumb|A 16th-century edition of ''Corpus Juris Civilis Romani'' (1583)]]

Common law is usually contrasted with the [[civil law (legal system)|civil law]] system, which is used in [[Continental Europe]], Mexico, most of [[Central America|Central]] and [[South America]], and some African countries including [[Egypt]] and the [[Francophone]] countries of the [[Maghreb]] and west Africa.<ref>{{Cite book| last1 = Obeid| first1 = Nayla Comair| last2 = Brekoulakis| first2 = Stavros| title = The Plurality and Synergies of Legal Traditions in International Arbitration: Looking Beyond the Common and Civil Law Divide |publisher = Kluwer Law International B.V.| isbn = 978-94-035-2911-0|  date = 2024-02-20}}</ref>

Common law systems trace their history to the English common law, while civil law systems trace their history through the Napoleonic Code back to the {{lang|la|[[Corpus Juris Civilis]]}} of [[Roman law]].<ref>{{cite web|url=http://www.radford.edu/~junnever/law/commonlaw.htm|title=Description and History of Common Law|access-date=14 March 2017|archive-date=28 February 2017|archive-url=https://web.archive.org/web/20170228123015/http://www.radford.edu/~junnever/law/commonlaw.htm|url-status=dead}}</ref><ref>{{cite web|url=https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html|title=The Common Law and Civil Law Traditions|access-date=11 June 2016|archive-url=https://web.archive.org/web/20160422031516/https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html|archive-date=22 April 2016|url-status=dead}}</ref> 

====Role of precedent and judicial review====

The primary contrast between the two systems is the role of written decisions and precedent as a source of law (one of the defining features of common law legal systems).<ref name=LawGovPol /><ref name="BlacksLawDict"/>
While Common law systems place great weight on precedent,<ref>It is characteristic of the common law to adopt an approach based "on precedent, and on the development of the law incrementally and by analogy with established authorities". {{cite BAILII |litigants=Robinson v Chief Constable of West Yorkshire Police |year=2018 |court=UKSC |num=4 |pinpoint=para. 21}}</ref> civil law judges tend to give less weight to judicial precedent.<ref>{{cite journal |last1=Garoupa |first1=Nuno |last2=Liguerre |first2=Carlos Gomez |title=The Syndrome of the Efficiency of the Common Law |journal=Boston University International Law Journal |date=2011 |volume=29 |page=298}}</ref> For example, the [[Napoleonic Code]] expressly forbade French judges to pronounce general principles of law.<ref>"5. The judges are forbidden to pronounce, by way of general and legislative determination, on the causes submitted to them." [http://www.napoleon-series.org/research/government/code/book1/c_preliminary.html ''Code of Napoleon'', Decree of March 5, 1803, Law 5]</ref>

In some civil law jurisdictions the judiciary does not have the authority to [[judicial review|invalidate legislative provisions]].<ref>[https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4697&context=lalrev Judicial Discretion in the Civil Law] In the common talk among lawyers, it has even been said that in the Civil Law system legislators are almost like gods, and judges not even men."</ref> For example, after the fall of the [[Soviet Union]] the [[Armenian parliament]], with substantial support from [[USAID]], adopted new legal codes. Some of the codes introduced problems which the judiciary was not empowered to adjudicate under the established principles of the common law of contracts - they could only apply the code as written.<ref name=usaid>"In some cases, according to some expert observers, important principles were not included in the legislation because the drafters, not having any experience in commerce, could not appreciate the importance of the principles and the advisors could not convince them of the necessity of certain principles. For example, under legislation adopted, boards of directors can be held criminally and civilly liable if the corporation does not turn a profit, not exactly a great incentive to risk taking. It illustrates the difficulty of changing societal norms. At the same time, in deciding commercial cases, the judges are not to examine the prevailing practices regarding what agreements mean within the trade at the time the contract was entered into, a fundamental concept in western commerce and judicial practice." [https://web.archive.org/web/20061001154237/http://pdf.usaid.gov/pdf_docs/PNADC206.pdf Rule of Law Assistance Impact Assessment: Armenia]</ref><ref>{{Cite journal| title = The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems |journal=Indiana Journal of Global Legal Studies| access-date = 2024-05-10| url = https://ijgls.indiana.edu/volume-11-number-1/the-advantages-of-the-civil-law-judicial-design-as-the-model-for-emerging-legal-systems/}}</ref>

There is no doctrine of ''[[stare decisis]]'' in the French civil law tradition. Civil law codes must be changed constantly because the precedent of courts is not binding and because courts lack authority to act if there is no statute.<ref>''The Common Law and Civil Law Traditions'', Robbins Collection, University of California at Berkeley.[https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html] {{Webarchive|url=https://web.archive.org/web/20160422031516/https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html|date=22 April 2016}}</ref> There are regular, good quality law reports in France, but it is not a consistent practice in many of the existing civil law jurisdictions. In French-speaking colonial Africa there were no law reports and what little we know of those historical cases comes from publication in journals.<ref>{{cite journal |title=An Introduction to Law in French-Speaking Africa |journal=The Journal of Modern African Studies |date=1971 |volume=9 |issue=2 |doi=10.1017/S0022278X00025064 |url=https://www.cambridge.org/core/journals/journal-of-modern-african-studies/article/abs/an-introduction-to-law-in-frenchspeaking-africa-volume-i-africa-south-of-the-sahara-by-jeswald-w-salacuse-charlottesville-the-michie-company-1969-pp-xxii-616-20/8AEEC417BAA2D98EC42D82379D47403D}}</ref>

==== Adversarial system vs. inquisitorial system ====
[[#Disambiguate civil law|Common law systems]] tend to give more weight to separation of powers between the judicial branch and the executive branch. In contrast, civil law systems are typically more tolerant of allowing individual officials to exercise both powers.  One example of this contrast is the difference between the two systems in allocation of responsibility between prosecutor and adjudicator.<ref name="LawteacherInquisitorialAdversarial">{{cite web|url=https://www.lawteacher.net/free-law-essays/constitutional-law/inquisitorial-and-adversarial-system-of-law-constitutional-law-essay.php|title=Inquisitorial And Adversarial System Of Law|website=lawteacher.net}}</ref><ref name="PortsmouthAdversarialInquisitory">{{cite web|url=http://compass.port.ac.uk/UoP/file/c7ffec37-0632-475f-84ba-ae018a2f0f38/1/Types_of_law_IMSLRN.zip/page_10.htm|title=Types of Legal System: Adversarial v. Investigatory Trial Systems|last=LangstoT|website=compass.port.ac.uk|access-date=17 November 2017|archive-url=https://web.archive.org/web/20171125130415/http://compass.port.ac.uk/UoP/file/c7ffec37-0632-475f-84ba-ae018a2f0f38/1/Types_of_law_IMSLRN.zip/page_10.htm|archive-date=25 November 2017|url-status=dead}}</ref>

Common law courts usually use an [[adversarial system]], in which two sides present their cases to a neutral judge.<ref name="LawteacherInquisitorialAdversarial" /><ref name="PortsmouthAdversarialInquisitory" />  For example, in criminal cases, in adversarial systems, the prosecutor and adjudicator are two separate people.  The prosecutor is lodged in the executive branch, and conducts the investigation to locate evidence.  That prosecutor presents the evidence to a neutral adjudicator, who makes a decision.

In contrast,  in [[Civil law (legal system)|civil law]] systems, criminal proceedings proceed under an [[inquisitorial system]] in which an examining magistrate serves two roles by first developing the evidence and arguments for one side and then the other during the investigation phase.<ref name="LawteacherInquisitorialAdversarial" /><ref name="PortsmouthAdversarialInquisitory" />  The examining magistrate then presents the dossier detailing his or her findings to the president of the bench that will adjudicate on the case where it has been decided that a trial shall be conducted. Therefore, the president of the bench's view of the case is not neutral and may be biased while conducting the trial after the reading of the dossier.{{Citation needed|date=December 2023|reason=Should be a source that demonstrates judges are biased}} Unlike the common law proceedings, the president of the bench in the inquisitorial system is not merely an umpire and is entitled to directly interview the witnesses or express comments during the trial, as long as he or she does not express his or her view on the guilt of the accused.

The proceeding in the inquisitorial system is essentially by writing. Most of the witnesses would have given evidence in the investigation phase and such evidence will be contained in the dossier under the form of police reports. In the same way, the accused would have already put his or her case at the investigation phase but he or she will be free to change his or her evidence at trial. Whether the accused pleads guilty or not, a trial will be conducted. Unlike the adversarial system, the conviction and sentence to be served (if any) will be released by the trial jury together with the president of the trial bench, following their common deliberation.

In contrast, in an adversarial system, on issues of fact, the onus of framing the case rests on the parties, and judges generally decide the case presented to them, rather than acting as active investigators, or actively reframing the issues presented.  "In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present."<ref>United States v. Sineneng-Smith, No. 19–67 (7 May 2020)</ref>  This principle applies with force in all issues in criminal matters, and to factual issues: courts seldom engage in fact gathering on their own initiative, but decide facts on the evidence presented (even here, there are exceptions, for "legislative facts" as opposed to "adjudicative facts").

On the other hand, on issues of law, common law courts regularly raise new issues (such as matters of jurisdiction or standing), perform independent research, and reformulate the legal grounds on which to analyze the facts presented to them.  The United States Supreme Court regularly decides based on issues raised only in [[amicus brief]]s from non-parties.  One of the most notable such cases was ''[[Erie Railroad v. Tompkins]]'', a 1938 case in which neither party questioned the ruling from the 1842 case ''[[Swift v. Tyson]]'' that served as the foundation for their arguments, but which led the Supreme Court to overturn ''Swift'' during their deliberations.<ref name="duke party presentation">{{cite journal | title = The Limits of Advocacy | first = Amanda | last = Frost | date = 2009 | journal = Duke Law Journal | volume= 59 | issue =3 | pages = 447–518 | url = https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1032&context=facsch_lawrev }}</ref> To avoid lack of notice, courts may invite briefing on an issue to ensure adequate notice.<ref>the appendix to the ''Sineneng-Smith'' opinion gives an extensive catalog of cases in which the Court permissibly sought outside briefing.</ref>  However, there are limits—an appeals court may not introduce a theory that contradicts the party's own contentions.<ref>See ''[[Greenlaw v. United States]]'' and ''[[United States v. Sineneng-Smith]]''</ref>

There are many exceptions in both directions. For example, most proceedings before U.S. federal and state agencies are inquisitorial in nature, at least the initial stages (e.g., a patent examiner, a social security hearing officer, and so on), even though the law to be applied is developed through common law processes.

==== Convergence of common law and civil law ====
The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of [[jurisprudence]] (similar to [[case law]] but not binding) in civil law countries, and the growing importance of [[code law|statute law and codes]] in common law countries.

Common law countries are increasingly adopting codes, similar to civil law systems, in areas such as [[Bankruptcy in the United States|bankruptcy]], [[intellectual property]], [[Competition law|antitrust]], banking regulation, securities, and tax law.<ref name="Best of Both">{{cite web |last=Funken |first=Katja |date=July 2003 |title=The Best of Both Worlds - The Trend Towards Convergence of the Civil Law and the Common Law System |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=476461 |access-date=29 November 2024 |website=SSRN|ssrn=476461 }}</ref>{{rp|pages=|style=AMA|page=5}} In the United States, the [[Uniform Commercial Code]] (UCC) is an example of a codified framework governing various aspects of commercial law.<ref name="Best of Both" />{{rp|pages=|style=AMA|page=6}} Widely regarded as one of the most significant developments in American law, the UCC has been enacted, with some local variations, in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.<ref>{{Cite web |title=Uniform Commercial Code |url=https://www.uniformlaws.org/acts/ucc |access-date=2024-11-29 |website=www.uniformlaws.org |language=en |quote="The Uniform Commercial Code (UCC) is a comprehensive set of laws governing all commercial transactions in the United States. It is not a federal law, but a uniformly adopted state law. Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive. For this reason, the UCC has been called 'the backbone of American commerce.'"}}</ref><ref>{{Cite web |title=Uniform Commercial Code (UCC) {{!}} Duke University School of Law |url=https://law.duke.edu/lib/research-guides/ucc/ |url-status=live |archive-url=https://web.archive.org/web/20240726101637/https://law.duke.edu/lib/research-guides/ucc/ |archive-date=2024-07-26 |access-date=2024-11-29 |website=law.duke.edu |language=en |quote="The Uniform Commercial Code (UCC), a comprehensive code addressing most aspects of commercial law, is generally viewed as one of the most important developments in American law. The UCC text and draft revisions are written by experts in commercial law and submitted as drafts for approval to the National Conference of Commissioners on Uniform State Laws (referred to as the Uniform Law Commissioners), in collaboration with the American Law Institute. The Commissioners are all attorneys, qualified to practice law, including state and federal judges, legislators and law professors from throughout the United States and its territories. These quasi-public organizations meet and decide whether to endorse the drafts or to send them back to the experts for revision. The revision process may result in several different revisions of the original draft. Once a draft is endorsed, the Uniform Law Commissioners recommend that the states adopt these rules. The UCC is a model code, so it does not have legal effect in a jurisdiction unless UCC provisions are enacted by the individual state legislatures as statutes. Currently, the UCC (in whole or in part) has been enacted, with some local variation, in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands."}}</ref>

An example of convergence from the other direction is shown in the 1982 decision ''Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health'' ({{ECLI|ECLI:EU:C:1982:335}}), in which the [[European Court of Justice]] held that questions it has already answered need not be resubmitted. This showed how a historically distinctly common law principle is used by a court composed of judges (at that time) of essentially civil law jurisdiction.