Civil law systems and their key characteristics

Civil law has a long history, dating all the way back to Roman times, and remains the dominant legal tradition in many countries including Central and South America and most of Europe. Civil law tradition was gathered into a comprehensive summary including all facets of Roman law by the Emperor Justinian in the sixth century, but this was based on centuries of Roman tradition. It became the basis of what we call civil law today.

In the United States, common law is what most people think of when they think of law. Common law is adversarial, whereas civil law is inquisitorial. In civil law, judges do not interpret the law, thus creating "case law," or a history of judgments. In the United States, in civil law, the judges look at the facts and determine how the facts compare to established laws. Since civil law is not the prominent legal system in the United States, many lawyers and even judges have only superficial knowledge of it. In American law schools, common law is emphasized.

In common law, the lawyers have tremendous influence in how a case is heard. In civil law, however, the judge oversees and supervises any fact-finding. The process of gathering facts is markedly more complicated under common law. Through the discovery process, each side takes depositions from witnesses. They gather evidence and keep careful track of who handles it and where it is stored. In a preliminary hearing, the prosecuting attorney must convince the presiding judge that in fact the prosecution has a strong enough case to bring to trial. In civil law as practiced in the United States, the court proceedings are more informal, and the judge makes an independent judgment about the worthiness of any evidence.

How civil cases are heard is affected strongly by the fact that in the United States, civil cases have no jury. The people involved count on the judge's ability to evaluate not only evidence but testimony as well. The rules for testimony for civil law in the United States are also looser than they are for common law. The judge has the discretion to accept, for instance, hearsay testimony, based on his/her judgment regarding how credible it is. The judge decides for him or herself how much credence to give to both evidence and testimony. The judge can also ask questions of the parties involved. In common law, asking questions to seek information relevant to a case is left entirely up to the attorneys involved.