In my previous article “Lawyering up across the Pond(s)!”, I had listed out a few differences between the US and India litigation systems.

Here, I delve into a little more depth between the legal codes mostly used by our countries of interest – Common Law and Civil Law; both have their origins in Europe.

Many procurement professionals in India, as part of their work profiles have to contend between two or more geographies. It’ll be worthwhile to take a brief look at different law codes/systems that are in effect in different countries, without going too much in detail. The idea is to be legally aware in jurisdictions that we are active. Most countries, follow either Common Law (Commonwealth/Ex-British Empire countries) or Civil Law (of Non-British but European origin). The US interestingly follows a curious mix of both, with a layering of state specific jurisdiction, as well.

Let’s try to understand the basic differences, pro and cons between both.          

In Common Law systems (precedent based; legal interpretation can be argued) the law continually evolves in addition to being amended by laws passed by the legislature. If a higher court has previously interpreted a statute in a particular law this cannot be overridden by a lower court – the decision of the higher court is a binding precedent. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. Common law legal systems are in use in England where it originated, and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Singapore, Pakistan, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia.

A Civil Law (prior precedents have no bearing; each case stands on it’s own merit based on the letter of the law; judge’s legal interpretation is final and cannot be argued) country has a body of law (passed by Parliament) that can be referred to in each individual case and there is no such thing as binding precedent. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case. It is the most prevalent and oldest surviving legal system in the world and is found in continental Europe, much of Latin America and in parts of Asia and Africa.         

In the U.S. (except Louisiana), if you want to know what the law is, you check the statutes, rules and regulations. But you also need to review how these laws have been interpreted and applied by reviewing past legal cases.

Under the Civil Code your inquiry stops with the statutes, rules and regulation – the Civil Code itself. Forget about creative interpretations of the law, or complying with the spirit of the law rather than the letter of the law.

If the Civil Code says that you need to do X, you need to do X. There is no room for making logical arguments, such as since doing Y would have the same result as doing X, it should be okay – and perfectly legal – to do Y rather than X. You might as well stop the analysis, and get ready to follow the letter of the law exactly, even if you can think of a hundred different and perhaps better ways to accomplish the same thing.

Pros and Cons

The benefit of a common law system is that you can be confident of what will happen in your case if a similar case has been heard before. The drawback is that if you have an unusual case, there is nothing to stop a judge creating a new law and applying it to your case.

The benefit of a civil law system is that you can only be judged by the laws which were actually written down in front of you at the time. The drawback is that even if previous cases show you should win your case, there is no guarantee a judge will interpret the code in the same way on your case.

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