what is Common law? what is civil law? what are differentiate between common law and civil law ? advantage and disadvantage of common law and civil law,short history both of them. So, Lastly it can be said that there is a short discussion on civil law and criminal law . You may get help from this slide

1. COMMON LAW
 Judge-declared law. Law which exists and applies to a group on the basis of customs and legal
precedents developed over hundreds of years in Britain. It is the basis of the modern jury system.
 It was introduced by king Henry (II)
WHERE WE FIND THE COMMON LAW?
The common law constitutes the basis of the legal systems of:
 Australia (both federal and individual states),
 Bangladesh,
 Ghana,
 Hong Kong,
 India,
 Ireland,
 Israel,
 Malaysia,
 New Zealand,
 Pakistan,
 South Africa,
 United Kingdom:
COMMON LAW BASED ON:
1. Judges pitches: Judges wielded judiciary power in a certain circuit of England
2. Curia regis: It was instituted in 1178 by Henry II. It was made up by 5 judges and divided into
two different assemblies: Magnum Concilium and Common Council. Curia Regis cooperated
with the sovereign in legislative, executive and judiciary functions. From Curia Regis came
Westminster Courts: Corte dello Scacchiere, Corte dei Comuni and Court of King’s bench.
3. Writs system: The King, uses the writ (an order) to satisfied subjects’ requirements. Writ was
the system to function justice
COMMON LAW’S ERAS
o I era: from the 5th century to 1066 (Norman’s invasions)
o II era: from 1066 to 1485 (the accession to the throne of the House of Tudor)
o III era: from 1485 to 1875 (statement of Equity Law)
o IV era: from 1875 to nowadays...
THE ORIGIN OF THE COMMON LAW
 The English common law originated in the early Middle Ages in the King’s Court (Curia Regis),
a single royal court set up for most of the country at Westminster, near London. Like many other
early legal systems, it did not originally consist of substantive rights but rather of procedural
remedies. The working out of these remedies has, over time, produced the modern system in

2. which rights are seen as primary over procedure. Until the late 19th century, English common law
continued to be developed primarily by judges rather than legislators.
 The common law of England was largely created in the period after the Norman Conquest of
1066. The Anglo-Saxons, especially after the accession of Alfred the Great (871), had developed
a body of rules resembling those being used by the Germanic peoples of northern Europe. Local
customs governed most matters, while the church played a large part in government. Crimes were
treated as wrongs for which compensation was made to the victim.The Norman Conquest did not
bring an immediate end to Anglo-Saxon law, but a period of colonial rule by the mainly Norman
conquerors produced change. Land was allocated to feudal vassals of the king, many of whom
had joined the conquest with this reward in mind. Serious wrongs were regarded mainly as public
crimes rather than as personal matters, and the perpetrators were punished by death and forfeiture
of property. The requirement that, in cases of sudden death, the local community should identify
the body as English (“presentment of Englishry”)—and, therefore, of little account—or face
heavy fines reveals a state of unrest between the Norman conquerors and their English subjects.
Government was centralized, a bureaucracy built up, and written records maintained. Controversy
exists regarding the extent to which the efficient government of the Anglo-Norman realm was due
to the legacy of Anglo-Saxon institutions or to the ruthlessness of the Norman invaders. Elements
of the Anglo-Saxon system that survived were the jury, ordeals, the practice of outlawry, and
writs (orders requiring a person to appear before a court; Important consolidation occurred during
the reign of Henry II (1154–89). Royal officials roamed the country, inquiring about the
administration of justice. Church and state were separate and had their own law and court
systems. This led to centuries of rivalry over jurisdiction, especially since appeals from church
courts, before the Reformation, could be taken to Rome.
 The Normans spoke French and had developed a customary law in Normandy. They had no
professional lawyers or judges; instead, literate clergymen acted as administrators. Some of the
clergy were familiar with Roman law and the canon law of the Christian church, which was
developed in the universities of the 12th century. Canon law was applied in the English church
courts, but the revived Roman law was less influential in England than elsewhere, despite
Norman dominance in government. This was due largely to the early sophistication of the Anglo-
Norman system. Norman custom was not simply transplanted to England; upon its arrival, a new
body of rules, based on local conditions, emerged.
FEATURES OF CAOMMON LAW:
 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);
 Generally, 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.

3. ADVANTAGES & DISADVANTAGES OF COMMON LAW
 i) Equity:
 Equity is to correct common law defects and mitigate its harshness. It can be used for all classes
of people unlike the common law. The law was very technical in common law and if there was
error in the formalities the person making the claim would lose the case. In this case, equity
rewards the claimants better. The only remedy that common law could give was ‘damages’ – that
is an order that the defendant pay a sum of money to the claimant by way of compensation. The
chancellor also developed new remedies which were able to compensate the appelantives more
fully than the common law remedy of damages. The main equitable remedies were injunctions,
specific performance, rescission, rectification. Equity is not a complete system of law, it merely
fills the gaps of common law and soften the strict rules of common law.
 ii) Precedents:
 As these decisions are based on previous judgements, it’s more convenient to follow this process
through. People know what to expect; there is an element of predictability. The process is easier
and more practical as there are no fixed, lengthy rules but real situations that have already been
resolved.
 iii) Efficient:
 As there is already a basis on which the judgment will be passed, a basic framework so to say, the
judicial process becomes so much faster. There is certain efficiency in the process as compared to
what the procedure would be like in comparison with a system that did not follow the precedent
based system.Plus these decisions are based on a precedent and so have a stronger basis.
DISADVANTAGE
i) Perpetuation of bad decisions:
The downside of a judgment that has been made, it's that it will be superseded again by other judges even
if the decision is defective. And in the common law it's about following precedents. This will take a long
time to happen. So, this directly up held a bad decision.
ii) in the absence of precedent:
People will not know what to predict when they come to a situation that needs to be taken to court. When
there is no precedents judges make decisions based on the evidence given and as far as possible come to a
fair judgement, sometimes a view of the evidence by the judge may bring about a wrong judgment.
iii) Need for records:
Because these precedents are to be followed by all other courts or in many cases, lengthy, detailed records
have to be maintained. And to make easy the accessing of these cases and previous decisions, uniform
indexing methods have to be created and followed diligently.

4. CASE EXAMPLE
 On July 27, 1934, Harry Tompkins was walking on a narrow footpath by the Erie Railroad tracks
in Hughestown, Pennsylvania. As a train approached, something protruding from one of the
railcars struck Tompkins and knocked him down, causing his arm to be crushed beneath a train
wheel. The train was operated by a corporation registered in New York, so Tompkins filed his
civil lawsuit in federal district court.
 The district court judge who heard the case followed current federal law of the time, in applying
federal common law to the case, rather than common law of either the state of Pennsylvania or
New York. Federal common law applied a standard of “ordinary negligence” when determining
what level of care the railroad owed to individuals who are not employed by the railroad.
Common law in the state of Pennsylvania, where the accident occurred, specifies that the railroad
owes a “wanton negligence” duty of care to trespassers, which requires proof of a greater level of
negligence. The court found in Tompkins’ favor, and awarded him damages.
 Prior to the case of Tompkins v.Erie Railroad,it had already been determined that, when a case is
heard in federal court in diversity,meaning that the case is filed in federalcourt because it crosses
state jurisdictions, the state’s statutory law must be applied. It had also been ruled, however, that
a federal court hearing a case in diversity was not required to apply the state’s common law, or
precedent, to the case.
 The railroad appealed the matter to the appellate court, then to the U.S. Supreme Court. After
reviewing the case, the Supreme Court ruled that the federal district court did not have the
authority to create federal common law when reviewing state law claims in diversity, but must
apply state common law.
 This topic was quite important, as it was an effort by the Supreme Court to address the issue of
“forum shopping,” where plaintiffs in cases that cross jurisdictions take their case to the state or
jurisdiction whose laws would give them the greatest advantage. With this decision, the Court
overturned federal civil procedures, creating a mandate that federal common law should be
applied only to strictly federal cases, and not to diversity cases.
CIVIL LAW
 A comprehensive system of rules and principles usually arranged in codes and easily accessible to
citizens and jurists.
 A well-organized system that favors cooperation, order, and predictability, based on a logical and
dynamic taxonomy developed from Roman law and reflected in the structure of the codes.
 An adaptable system, with civil codes avoiding excessive detail and containing general clauses
that permit adaptation to change.
 A primarily legislative system, yet leaving room for the judiciary to adjust rules to social change
and new needs, by way of interpretation and creative jurisprudence
WHERE WE FIND THE CIVIL LAW?
 In Continental Europe, where most jurisdictions have civil codes. In Great Britain, Scotland has
retained an uncodified form of the civil law. Even when they have civil codes, Scandinavian
countries are not regarded as civil law jurisdictions.
 In Central and South America, almost all countries have civil codes.
 In Asia, many countries have received the civil law and have civil codes, such as Indonesia,
Japan, Kyrgyzstan, and Lebanon.
 Some remnants of the civil law traditions are to be found on some Pacific islands, especially in
the French territories of New Caledonia or Tahiti.
 In mixed jurisdictions, chiefly found in America, Africa, and Asia, but also in Europe, the civil
law coexists with other legal traditions such as the common law, customary law, or Islamic law.

5. FEATURES OF CIVIL LAW:
 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;
 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.
 In some civil law systems, e.g., Germany, writings of legal scholars have a 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 the 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
Aftergame 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
THE ORIGIN OF CIVIL LAW
 Civil law takes as its major inspiration classical Roman law (c. AD 1–250), and in particular
Justinian law (6th century AD), and further expanded and developed in the late Middle Ages
under the influence of canon law. The Justinian Code's doctrines provided a sophisticated model
for contracts, rules of procedure, family law, wills, and a strong monarchical constitutional
system. Roman law was received differently in different countries. In some it went into force
wholesale by legislative act, i.e., it became positive law, whereas in others it was diffused into
society by increasingly influential legal experts and scholars.
 Roman law continued without interruption in the Byzantine Empire until its final fall in the 15th
century. However, given the multiple incursions and occupations by Western European powers in
the late medieval period, its laws became widely implemented in the West. It was first received in
the Holy Roman Empire partly because it was considered imperial law, and it spread in Europe
mainly because its students were the only trained lawyers. It became the basis of Scots law,
though partly rivaled by received feudal Norman law. In England, it was taught academically at
Oxford and Cambridge, but underlay only probate and matrimonial law insofar as both were
inherited from canon law, and maritime law, adapted from lex mercatoria through the Bordeaux
trade.

6.  Consequently, neither of the two waves of Roman influence completely dominated in Europe.
Roman law was a secondary source that was applied only when local customs and laws were
found lacking on a certain subject. However, after a time, even local law came to be interpreted
and evaluated primarily on the basis of Roman law, since it was a common European legal
tradition of sorts, and thereby in turn influenced the main source of law. Eventually, the work of
civilian glossators and commentators led to the development of a common body of law and
writing about law, a common legal language, and a common method of teaching and scholarship,
all termed the jus commune, or law common to Europe, which consolidated canon law and
Roman law, and to some extent, feudal law.
ADVANTAGES & DISADVANTAGES OF COMMON LAW
 The Civil (or Roman) law system has at its core the codification of law, unlike Case law systems,
where it’s up to magistrates to decide of issues by referring to precedents or previous cases.
 The advantages of the former system is that it applies better the principle of legality, in such a
way that the average person is or can be fully aware of the consequences of his actions by
referring to written law. This warning is given beforehand in such a way that the person can only
be judged according to a known law and not an arbitrary one. Laws passed in Civil law
jurisdictions aren’t retroactive. They only apply for the future (with few exceptions) which means
that the legislature cannot arbitrarily apply laws to whoever it wants. In addition to that, while it
doesn't play a major role, judges often use jurisprudence (or previous cases) to judge issues where
the law remains silent or unclear, giving the judge some freedom.
 The disadvantages of such a system is that it remains static. A judge can never interfere in the
domain of law by giving wide interpretations. He can only apply written law with a narrow
margin of appreciation. This can lead to injustices, some of which might sound ridiculous, but
nevertheless are the result of applied law. Otherwise, this system gives too much power to
legislators and not enough to judges. A Civil law legislature can unilaterally (at least in
parliamentary systems) pass any law, even the most arbitrary of them, which also leads to
injustices.
CASE EXAMPLE
 Liebeck v. McDonald’s Restaurants, 1995
 This case began when 79-year-old Stella Liebeck, who was a passenger in her grandson’s car,
purchased a cup of coffee at McDonald’s drive-through. While the car was still parked, Liebeck
removed the lid from the cup to add some creamer to her coffee, inadvertently dropping the cup
and spilling the scalding hot coffee on her lap. Liebeck suffered third-degree, deep tissue burns
on her legs that required multiple surgeries and skin grafts.

7.  Liebeck filed a civil lawsuit against McDonald’s for her injuries under the torts of strict liability
and negligence. This case was controversial in that the media portrayed Liebeck’s civil lawsuit as
frivolous because she was suing over coffee being too hot. However, the damages to her body,
her pain and suffering, loss of income, and loss of enjoyment in life due to pain were real and she
did prevail in court. The jury found that the defendant’s product (the coffee) was defective (too
hot to drink) and this constituted a breach of implied warranty (the assumption that the coffee was
safe to drink). The jury also found that Liebeck was twenty percent at fault for her injuries.
Differences Between Civil Law and Common Law