Comparatively, legal terms are often confused as there are many situations in which the same legal terms have different meanings and/or situations in which legal terms have same legal effects. Often lawyers and their clients are caused confusion by such situations mostly in cases whereby common law lawyers have to deal with civil law and vice versa. Though they may compare and solve many issues harmonically, there still exist differences between civil law and common law systems as it concerns legal structure, terminologies, vital concepts, classification among others (Schubert, 2011).
The common law system is much typically adopted by those countries that were formerly colonized by British or protectorates with the United States included. In countries adopting common law, case law is normally of primary importance unlike in countries which adopt the civil law systems which use codified statutes predominantly. However, many countries mix the two in many occasions but a difference can be understood from an insight of the historical backgrounds and underpinnings of the two. Originally, the common law system can be traced back and much affiliated to the English Monarchy which used to give ‘writs’ aka formal orders in cases of justice. Owing to the inability of the writs to give enough cover universally to all situations, equity courts were subsequently established to address complaints and come up with appropriate solutions based on equitable principles borrowed from many authority sources. Consequently, collecting and publishing these noble amendment decisions, it was then possible for the courts to address precedential opinions and then apply them to present jurisdictions thus the development of the common law (Schubert, 2011).
On the other hand, in other European countries, civil law can generally be affiliated to originate from the code of laws that were developed by the Roman Empire Justinian at around 600 C.E. autocratic legal codes that were much underpinned and affiliated to the Roman Empire were developed over quite some number of centuries in a variety of countries hence some similarity in the legal systems though each with their own distinct bundles of laws. In countries or states that adopt the civil law, judges are mostly addressed and identified as investigators. They take the lead generally in the case/court proceedings and bring charges by establishing facts through witness interrogation and examination and strictly apply remedies as stipulated in the legal codes (Schubert, 2011).
Though lawyers still stand for their clients, they generally have a weaker hand in airing the interests in civil proceedings for they have no much central role in it. Just as in common law systems, their tasks include giving advice to their clients on law points and preparation of the legal pleads for filling with the court. In civil law systems unlike the common law systems, the importance of oral argument, in-court presentations and more of active lawyer representations are much minimal. Also, non-litigation legal capabilities for instance the preparation of wills and drafting of contracts, can be left to quasi-legal practioners who address businesses and individual privately (Schubert, 2011).
In common law systems, lawyers are very active and make presentation on behalf of their clients to the judge and even in other instances to the jury and examine witnesses by themselves. Proceedings are overseen and referred by the judges who have practically some greater authority and flexibility as opposed to civil systems with judges able to fashion a remedy to their legal practice appropriation at concluding the proceedings. In common law systems, lawyers are able to stand before the court and persuade and prudently argue out on points of the legal fact maintaining a very vibrant and active role in the legal proceedings. In common law countries, for instance America, it is against the law for any party other than a licensed lawyer to make preparations for legal documents of whatsoever kind to any party or entity. Registered and licensed lawyers are the only one to do such legal responsibilities having significant parts to administer in formal conflicts and disputes resolution no matter the country as long as that country adopts the common law (Schubert, 2011).
In a nutshell, the common law system does not always use a written formal constitution or codified laws with judicial decisions which a binding for they can only be overturned by a higher court or the same court or with some kind of legislation. Common law system affords extensive freedom and liberty of contract and everything is permitted that is not expressly prohibited and against the law. The common law system is much less prescriptive like the civil law system. Civil law system adopts a generally written constitution based on specific codes protecting basic human legal rights and duties though the administrative court judges are more like common law system judges. In civil law systems only legislative enactments are taken as binding for all with writings of legal scholars and pros having much influence in the court proceedings. Courts are always specific and strict to the prescribed law systems and underpinning codes and have less freedom and liberty of contract for many of the provisions in a contract can’t function out of certain provisions of the law (Schubert, 2011).
Frank August Schubert, (2011), Introduction to Law and the Legal System, Cengage Learning.