The legal system around the world falls into two main categories—common law and civil law. Among these two Civil Law System is the most widespread and is followed by roughly 150 countries currently. There are about 80 countries that follow Common Law System. However, most countries practicing common law follow a mixed law system that includes some variants of civil law.
The main difference between the two systems is that codified statutes are of primary importance in civil law systems whereas in the common law system, case law or published judicial opinion holds importance. However, the distinctions between these two law systems are not as clear-cut as it appears. That is why most countries use a mixed legal system and make amendments based on the changing socio-economic scenario. Their historical underpinnings and origin can give a much-required understanding of these law systems.
The History and Origin of Common and Civil Law Systems
Civil law can be traced back to the classic Roman Law, particularly Justinian Law (code of laws compiled by the Roman Emperor Justinian). The Justinian Code provides Civil Law a sophisticated model where contracts, rules, procedures, etc., are clearly defined. Civil Law is further developed in the following centuries taking inspiration from various countries and their legal systems such as canon law, Napoleonic Code, German Civil Code, Scandinavian Legal System, etc.
Common-Law, on the other hand, originated in the practices of the courts of the English kings. Common law also drew from Anglo-Saxon traditions such as a jury, the penalty of outlawry, and formal orders called writs. All decisions and orders were collected, published, and archived. It became easy for lawyers and judges to look up the proceedings, orders and apply them to current cases.
The differences between common law and civil law can be further described as:
The Common Law:
Common law or case law is a law promulgated by judges through decisions made by courts and judicial bodies similar to these courts rather than passing laws through legislative or executive action. The common law system is a legal system that gives weight to common law. This principle holds that treating different cases differently on different occasions is unfair. The body of precedence is called “common law,” and future decisions are made through it. In these circumstances in which the parties do not agree to the law that was passed, the common law court takes a prior decision from the competent court. In the event that a similar dispute has been resolved in the past, the court must follow the logic that was used in the previous case. If the court finds that the dispute differs from the one sought earlier, it is the duty of the court to establish a law. After that, the decision taken in this case is considered a precedent, and future courts must follow it.
The Civil Law:
Civil law is a legal system inspired by Roman law. The main feature of this law is that laws are written in a group, codified, and not defined by judges. Civil law is a set of legal ideas and systems that have been derived from Justinian’s law. Nevertheless, they are largely overlapped by Germanic, ecclesiastical, feudal, and local practices as well as doctrinal strains such as natural law, codification, and legislative position. Civil law usually deals with abstractions, creates principles for general issues, and distinguishes substantive rules from procedural rules. Civil law considers legislation the only source of law, and the court system is usually fortunate and is not restricted by precedents. It forms a number of specially trained officers from the judicial field who are given limited authority for the purpose of interpreting the law. However, separate juries from judges are not used in some cases, and regular volunteer judges are allowed to partner with legally trained judges.
The significant differences between Common Law and Civil Law at a glance.
|Based on English Law
|Based on Roman Law
|Relies on Precedent
|Influenced by Roman Law
|Trial format: confrontational
|Trial Format: collaborative
|No clear distinction
|Private Law and Public Law distinguished
|Judge and Jury
|One or panel of Judges
|Trial dominated by lawyers
|Judge actively participates
|Paired Expressions (binomials, trinomials)
|Long lists of terms
Source of Law in UAE
The judicial system in The United Arab Emirates is essentially a civil law jurisdiction. It derives from Roman, French, and Egyptian Laws, but the primary source is Sharia law. However, the Sharia courts are limited by the presence of Civil and Criminal courts. Each of the seven emirates maintains a parallel system of Sharia courts.
International Law is another source, which is UAE’s obligations signed in international conventions.
Mixed Legal System
The legal system of the UAE mirrors the cultural complexity of the country’s expatriate population. The UAE adopts a dual legal system of civil and Sharia laws. The UAE civil law system includes all relevant laws that are codified and largely adapted to meet the changing demands of business both locally and internationally.
Dubai has the most flexible legal system and often makes innovative amendments to create an optimal environment for business to flourish in the region. Thus, DIFC (Dubai International Financial Centre) has a unique regulatory and legal framework based on international standards and principles of common law.
Lawyers are essential to bridge the gap
The legal system in UAE involves one of the most mixed legal systems in the world. The UAE has developed the most robust and dynamic legal framework to give international investors and businesses significant comfort. The mixed system also encourages local businesses to flourish in a regulated framework. It is often challenging for lawyers to practice and work within this system yet maintain continuity. The lawyers and advocates at Bin Eid Advocates and Consultants are licensed to represent you in all courts, including DIFC. Our lawyers have years of experience dealing with cases related to both the common and civil law systems. Our expert legal advisors in Dubai, Sharjah, Abu Dhabi, RAK, Ajman, and other Emirates can handle any kind of complex legal problems and have been serving our clients for over 20 years.