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Published : June 17, 2012 | Author : anantgupta93
Category : Law - lawyers & legal Profession | Total Views : 3644 | Unrated

Anant Gupta B.B.A. LL.B. 2011-2016 National Law University, Orissa Mob. 919178332131

Here we have two legal systems, one tracing its roots to Roman law and another originating in England or we can say one codified and the other not codified or one following adversarial type of system other inquisitorial or one is continental whereas the other one Anglo-American and we can go on much further when discussing the differences between the two in terms of basic structure. What we actually need to know is the access to justice in each of the systems.

First, to get an idea as to what is the most basic difference between the two, we can say that civil law stresses more on the statutes involved whereas common law is more inclined towards following precedents.

When a case is to be handled, the state with civil law will treat it by applying the legislations referring to the codes set already (as this system considers legislation to be the primary source of law), the judge will then try to investigate into the matter himself in his own capacity in order to find out the truth and finally will hold pass out the decision.

When a case is presented in a state following common law then the two sides will bring in relevant precedent to compare it to the material facts of the given case, the judge being impartial will finally bring out the final decision.

Now that we have discussed briefly about how a case would be handled in both the systems, let us get down to the comparison of both the systems in terms of access to justice. VVI uses a broad definition of Access to Justice, which takes the perspective of the justice seeker as its point of departure and looks at the process this justice seeker has to go through to achieve appropriate redress.

The drafting of codes and laws under civil law is done taking in mind value conciseness, where as in common law, there is requirement and more emphasis is given on precision. The rationale behind this is that civil law is very open, broad and general to subject interpretation, this is why under civil law there is no proper definition provided. Statutes under the same law do not require as much precision in drafting since these are general and non-restrictive rules but nonetheless these should be concise in order to render the code exhaustive.

Civil law applies the traditional method, which is adopted by the common law system recently. This method is the method of characterization or categorization of dispute before identifying the appropriate internal law. As such, the civil law tradition is a closed system because a number of general principles govern various situations while the common law tradition is open because its rules could be created or expanded depending on the emergence of new facts and factual issues.

The most vital part of comparison of civil and common law is interpretation. It is not unexpected to find ambiguity in a rule while dealing with a case. The way in which this ambiguity is handled is very varied in the two systems.

In the case of civil law the true legislative intent and the entirety of the provisions is tried to seek. This means that when there comes a point where the statute is ambiguous, then the judiciary goes down to the deep roots of the origin of the statute and find out the objective of the same. By seeing this he may check whether the objective is getting fulfilled in the particular case. There are several rules in construction of a statute, which have to be considered, like substantive and deference canons. The effect of such kind of an interpretation on the justice seekers can be that the justice seekers may remain in a state of confusion before filing a case. The reason behind my saying is because the seekers are not in a position to predict the obvious decision because of involvement of some serious judicial research on the objective of the statute, which makes it hard for the general public to foresee the outcome.

The common law interprets it in a different manner by stating that the statutes carry an objective construction dependent on application of standing rules. In this system whenever there is ambiguity faced in the statute’s interpretation then the law related or the law involved in the same case is seen for checking out the context of the statute and its relevance. The casuistry involves ejusdem generic, the interpretation of ambiguous terms of provisions by looking at the rules of the same class or nature and in pari materia that suggests the interpretation of ambiguous statutes by looking at similar or closely linked statutes. The effect of this on justice seekers will be that they will be in a better position to predict the outcome of the case. Just for instance, in a leading case the principle of strict liability was propounded, which became a precedent and now in every case involving the same material facts, the principle as a precedent shall be applied. So, if there comes a case where the facts are like the one’s in its precedent then the parties will be able to predict that this type of a principle will be applied.

Another point of difference is in the remedy system. The civil law has no defined system for remedies and all depends on the case itself. The justice seeker may not be aware of the remedies beforehand in the case of civil law, since they are selected according to the particular case. This is because civil law directly focuses on the consideration of rights and duties whereas the orientation of common law is towards the court jurisdiction in granting the appropriate remedy. In common law, remedies constitute a consideration before the determination of rights.

The source of civil law doctrines is principles and rules from mass of cases and legal sources in order to clarify the meaning and application. Common law doctrines work by considering precedent cases or case development to draw principles and rules. Because of this the function of doctrines is made a lot simpler as compared to that of civil law. To find out the relevant principle involved, the civil law’s approach is to stress on case facts and common law stresses more on comparison of facts of previous or precedent cases to determine the applicable principle.


In my opinion, common law system is a better type of a legal system. I am in favor of it due to factors like flexible, expandable, remedial system, etc. In common law, focus on jurisprudence supports the development of specific rules ushering the resolution of actual cases.

Precedents act as a motivation for better decisions too. When a case is being handled in common law, it is to be seen that there is precision involved as that very case may be used as a precedent for future cases. So to provide the system with a better future, every case is decided very judiciously. The motivation lies in just decisions and development of strong reason-backed principles for development and growth of law in the land. And the precedent based system is at advantage as the judges chosen from the best and experienced barristers. So their decision will in anyway be logical and just.

Also, I think that adversarial system is in a better state of fairness and less prone to abuse, as more the intervention of state more is the probability of bias in the case, which is the case of inquisitorial system. In common law the judge does not interfere in finding out the truth, he acts as a referee and gives a just and unbiased decision by listening to both the sides.

The main reason because of which I support this system is because of its remedial system. As discussed earlier about the impact of this remedial system on the justice seekers, we can be sure that access to justice in common law is in a better position as compared to civil law. Focusing on the process of adjudication and court jurisdiction in determining rights and remedies ensures the implementation of court decisions.

Many general rules made in the civil system may not find application in specific circumstances. These are the rules, which do not find appropriate facts to fit in. In common law system there is so much precision while drafting the statute that the statutes majority of the times find application in actual cases. So this motivates the justice seekers in a way, as they may not feel that the rules made will not find applicability in their cases. So such a characteristic, gives to the seeker, immense confidence in the system.

# Glanville Williams (eleventh ed.) Learning the law, Universal Law Publishing Co.
# J.E. Penner, Jurisprudence, Oxford
# P.J. Fitzgerald, Salmond on jurisprudence, Universal Law Publishing Co.
# Roscoe Pound, Jurisprudence, The Law Book Exchange Ltd.
# A.P. Herbert, Uncommon law, Universal Law Publishing Co.
# Legrand, P & Munday, R 2003, Comparative legal studies: Traditions and transitions, Cambridge University Press, Cambridge.
# MacCormick, DN & Summers, RS (eds) 1993, Interpreting statutes: A comparative study, Aldershot, Dartmouth.

# www.ivythesis.typepad.com
# www.law.leiden.edu

# Access to Justice: conceptual paper (Van Vollenhoven Institute of Law)
# www.ivythesis.typepad.com
# Black’s Law Dictionary (9th ed.): the design or plan that the legislature had at the time of enacting a statute.
# Black’s Law Dictionary (9th ed.): of the same kind
# Black’s Law Dictionary (9th ed.): in the same matter
# Rylands vs. Fletcher 1868 UKHL 1

The  author can be reached at: apekshabansal@legalserviceindia.com

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