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Civil Law and common law are terms that are often used in legal literature, both academically and practically, when talking about the legal concept of a country. Every country has its own different legal system and principles according to the context of the country’s territory, which is usually influenced by various factors such as customs, majority religion, and characteristics to the legacy of the previous ruling era. This article will explain the concept and application of these legal systems with easy-to-understand explanations.
A. Continental European Legal System (Civil Law System)
The first legal system widely adopted in the world is Continental European Legal System. This law is commonly known as the Civil Law System. The origin of this law comes from the codification of the law that applied to the Roman Empire during the reign of Emperor Justinian in the VI century BC.
Civil Law has three defining characteristics, among others:
- Codified law;
- Judges are not tied to the precedent (so the law becomes the main law)
- an inquisitorial justice system.
This law has binding power because it systematically manifests what is in the regulations. Through this process, judges are only authorized to determine and interpret regulations within the limits of their judicial authority. A presiding judge’s decision in a case only binds the litigating parties ( Res Ajudicata ).
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The Civil Law system cannot be separated from the separation between the powers of law-making, judicial power, and the cassation system so that it is impossible for one power to interfere in the affairs of another. Adherents of the Civil Law system provide great flexibility for judges to decide cases without the need to imitate previous judges’ decisions as long as the judges adhere to the rules made by the Parliament, namely laws.
Furthermore, the Civil Law legal system uses the Inquisitorial system in the judiciary branch. In this system, judges have a major role in directing and deciding cases; judges are active in finding facts and are careful in assessing evidence. Judges in the civil law legal system try to get a complete picture of the events they review. This system relies on the professionalism and honesty of judges.
In its current development, this legal system is divided into public law and private law. Public Law includes legal regulations that regulate the power and authority of the ruler/state and the relations between the community and the state. Meanwhile, private law includes laws governing the relationship between individuals. In Indonesia, many western laws have been adopted, enforced and codified into the Indonesian legal system, for example the Criminal Code ( Kitab Undang-Undang Hukum Pidana , “ KUHP ”), the Civil Code ( Kitab Undang-Undang Hukum Perdata, “ KUHPer ”), and the Commercial Code ( Kitab Undang-Undang Hukum Dagang, “ KUHD ”).
B. Anglo Saxon Legal System (Common Law System)
The Anglo Saxon system, also known as Common Law, is a legal system that originated in England, then spread to the United States and other British colonies. The word “Anglo-Saxon” come from the two groups of European people who conquered modern day England following the collapse of the Roman Empire. William defended the customary law of indigenous people by including elements of law originating from Continental Europe.
The Anglo Saxon Legal System is a legal system based on jurisprudence or previous judges’ decisions known as “the doctrine of precedent/Stare Decisis”. This doctrine states that in deciding a case, a judge must base his/her decision on legal principles that already exist in the law based on another judge’s decision from a previous similar case (precedent). In addition, the role of judges in this legal system is greater compared to the other legal system as they not only act as interpreters of the law but also create law itself, commonly known as “Judge Made Law”. It is the judge’s decision that provides legal certainty in regards to the main law. Unwritten characteristics are very attached to this legal system. The operation of the law is also considered more dynamic, in line with the dynamics of the community.
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In its current development, this legal system also recognizes the division of public law and private law. Private law in this legal system is more aimed at laws regarding property rights, people, contract and acts against the law. Public law in this legal system includes laws that regulate the power and authority of the ruler/state and the relations between community and the state.
Furthermore, this legal system contains advantages and disadvantages. The advantage of this unwritten Anglo Saxon law is that it is more flexible and able to adapt to the development of the times and society because the laws applied are unwritten laws while, the disadvantage is that the element of legal certainty is not well guaranteed. This is because the legal basis for resolving cases/problems is taken from the unwritten customary law of the community/customary law.
The differences between the civil law system (European continental) and the common law system (Anglo-Saxon) can be measured based on four categorizations, among others; (i) legal sources, (ii) structure, (iii) legal systematics, and (iv) evidence. These four differences are inseparable from the history and legal culture that exists in each legal system.
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