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Common Law and Civil Law
Common Law and Civil Law
JD1
Legal systems can be classified into two categories: the Civil law and the
Common law. Common Law system can be traced back to English monarchy. This
system is well known through the usage of formal orders called writs when justice is
needed to be done. If in a situation writs were not sufficient, courts of equity were
basically established in order to provide remedies to hear complaints based on equitable
principles taken from sources of authority such as natural law. Common laws has no
comprehensive compilations of legal rules and statutes. While they do rely on
precedents, these are maintained over time through the record of the courts and case
laws (such as yearbooks and reports) documented in in collections.
On the other hand, Civil Law is the codified type of legal system which can be
traced back to the code of laws compiled by the Roman Emperor Justinian. This system
has comprehensive, continuously updated specified legal codes that may be brought
before a competent court of jurisdiction with applicable procedure and the appropriate
punishment. Its historical origin can be found in the compilation of Roman Laws. 1
The Philippine legal system can be characterized by a mixed of both Civil and
Common law in such a way that our Civil law jurisdictions often have a statute law that
is heavily influenced by the common law. With respect to the development of our legal
system, Spain has imposed to us the Civil law system as represented by the Code
Napoleon. Subsequently, United States took over us and imposed the common law
system on public law.2 For that reason, Philippines is a hybrid of legal system until the
present day.
The confluence of the two legal systems has given ours elasticity and progressiveness
because ideally, it is better to cope with the weaknesses inherent in, and be able to draw
from the strengths offered by, both Civil law and Common law systems. Both systems
have philosophical mechanisms to promote certain important but contending and often
conflicting aims; predictability by the doctrine of stare decisis, and flexibility and
growth by the rules of equity and the techniques for limiting and distinguishing
precedent in the Common law system. Whereas, in the code system of Civil law, while
flexibility and growth are permitted, internally, by general clauses tempering rigid rules,
and externally by interpretation, made more apparent by the absence of a formal rule of
stare decisis.
A major difference between Civil law and Common law is that priority in Civil
law is given to doctrine over jurisprudence, while the opposite is true in the common
law. An example would be the adoption of the theory of separation of powers by
Montesquie whereby the function of legislator is to legislate and the function of the
court is to apply the law. In common law, precedents promulgated by judges is found to
be the core of the law. Civil law focuses on legal principles with the purpose of tracing
1https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html
2 Koppel, A., Mattar, M.,& Palmer, Vernon. Mixed Legal Systems: East and West (January 2015)
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Ritchelle V. Libon
3 Tetley, W., Mixed Jurisdictions: Common Law vs Civil Law (Codified and Uncodified), pp. 591-618
4http://www.lawteacher.net/free-law-essays/international-law/regionalisation-is-evident-in-thephilippines-in-different-manners-international-law-essay.php