Globalisation, through its primary processes, has influenced not only political and socio-economic development but also legal development. The liberalisation of markets made it easier to trade cross-country so that parties to contracts can be citizens of different jurisdictions. In addition, other legal rights andobligations emerge between or among parties covered by the jurisdiction of different states or legal systems. Differences in legal systems and jurisdiction heightened the issue of the proper law to apply in the assertion of rights or enforcement of claims and duties when the parties involved fall under different legal jurisdictions (Friedman 1996; 1999).
There are two fundamental andinfluential legal systems in the world, which are common law and civil law. Common law states are those highly influenced by the Anglo-Saxon legal tradition such as the United Kingdom, Australia, and the British territories. Civil law states are the countries with legal systems influenced by the Roman legal tradition such as France, Austria and Germany (Apple & Deyling 1985; Watson 1991; Youngs1998). As the two primary legal systems with different origins and legal principles (David & Brierly 1985), these are the two legal systems commonly involved in conflict of laws. Nevertheless, efforts continue to find ways of determining when one legal system applies or when both can jointly apply. (Friedman 1997; Glenn 2007) Comparative law emerged to focus on the linkage between the two legalsystems. This specific area of legal study clarifies the distinctions between the two legal systems for purposes of clarifying and identifying areas of linkage to address conflict of laws. (Zweigert, Koetz & Weir 1998; De Cruz 1999)
Key to comparative law for purposes of addressing conflict of laws is an understanding of the similarities and differences, core legal principles andprocesses, and legal applications of common law and civil law legal systems in specific circumstances. The discussion covers the comparison of common law and civil law including the advantages and disadvantages before forming suggestions for policy or legal reform.
Comparison of Common Law and Civil Law
Conceptualisation & Origin
Common law and civil law both constitute legaltraditions but with different conceptualisations. Civil law is the legal tradition that originated from Roman law, which found codification as Corpus Juris Civilis during the reign of Emperor Justinian of the Roman Empire. This codified laws spread across Continental Europe before spreading to the other regions where the influence of the Roman Empire Spread. As civil law developed, this evolvedinto dual streams of thought. One stream comprised of those jurisdictions that adhered to the codified Roman law such as France, Austria and Germany that adhered to the Roman tradition. In this stream belong the states that imitated the Roman tradition such as jurisdictions in Continental Europe including Quebec in Canada, Louisiana in the United States. The other stream pertains to the states thatadopted the un-codified Roman legal tradition such as South Africa and Scotland. Nevertheless, although civil law evolved into two streams, the fundamental characteristic of civil law is its systematic and structured nature as well as its heavy reliance on broad declarations or general principles that often leave the details to the courts. (Zweigert & Koetz 1998; Legrand & Munday 2003;Orucu & Nelken 2007)
| Civil Law | Common Law |
Foundation | Justinian or Roman Tradition | Anglo-Saxon Tradition |
Scope of Influence | Continental Europe & Other Jurisdictions Influenced by the Roman Tradition | Britain, British Colonies, & Some Former Spanish Territories |
Form | Codified & Un-Codified | Un-Codified |
Legal Nature | Broad Prescriptions |...