[Closed] Simple explanation of the difference between Civil and Common Law?

I thought that 'common law' was just a complete misconception passed from one generation to the next and has no basis in real law.
But I'm not a lawyer, so i'm probably completely wrong. Though because I'm not a lawyer my advice is much more reasonably priced 🙂

there's different definition depending on context.

Common law is law that is formed through judicial precedent.
Statute law is written by Parliament/Lords and will often codify common law as well as add new law to the legal body.

Civil law in the UK usually refers to that part of law that comes nto play between individuals, whereas the alternative: Criminal Law, is more concerned with the interaction of the individual and society.
Civil law can also means n some instances simply the law of the state.

All IANAL.

Common Law is set through precedents being set in court decisions. Civil law is set through Acts of Parliament and Administrative Orders etc.

In this context Civil Law = systems based on Roman Law (most of Europe except UK I think) & Commonlaw = systems where law originally based on Court decisions and not Roman Law (UK, US & Commonwealth I think).

IAL but not English so I may not have the detail right but I think that's the jist of it.

The "Common Law" misconception IanMunro is probably referring to is probably to do with unmarried couples, and he is right in that case. You wanted a source...

[url= http://openlearn.open.ac.uk/mod/resource/view.php?id=208934 ]Open University[/url]

Yeah basically you're right. Common Law is precedent based, the most serious offense in Common Law being Murder. Other laws whether civil (tort), standard of proof being 'on the balance of probability' or criminal (crime), standard of proof being 'beyond reasonable doubt', are mostly statutory. Where guidance as to what behaviour contravenes the law is given via acts of parliament.

The standard of proof required when trying criminal law is greater than civil law. This reflects the seriousness of the punishments avialable for the contravention of either.

Civil Law- Contravention=Tort. A plaintiff will sue a defendant. Punishment= Fines, monetary compensation.

Criminal Law-Contravention=Crime. The state (crown) will prosecute a defendant. Punishment=Loss of liberty.

Common Law exists in both civil and criminal law.

ooooh! This is my chance to look clever - so here goes...

Ok. In the UK we have two approaches to the law. By approach, we mean we have two ways by which the courts interpret the law. On is civil law, which are laws which are set in stone and are more or less non negotiable shall we say. They are clear cut and decisions of the court are fairly straight forward. You either did it or you didn’t.
With regards to common law, things get a bit more complicated. The courts refer to decisions previously made when applying the law. So for example, when someone who is your employer folds the company and runs away with your wages, funnily enough, this is not actually what we would deem illegal in civil law. So, you have to sue them, and the court decides based on previous cases which are similar to yours. It is not easy to sue someone in the UK.

There are a few provisions in civil law, for example, the Human Rights Act 1998, which tells the courts that they are to take European Jurisprudence into consideration when “interpreting the law” in common law cases. This means when human rights issues come into courts, although it is no longer a civil matter, the courts must interpret the law so that it is compatible with the EU convention rights. In other words, although we do not have a written constitution in the UK for human rights issues, we do respect the ECHR unless provisions are made to safeguard the public, i.e. national security. So, not only do they refer to previous cases, but they must also make sure that the ECHR are upheld as written in the Human Rights Act 1998.

I hope this helps.

Civil law - basically anything that isn't criminal law.

Common law - precedent based system of laws, developed through judicial decisions - as opposed to a codified system such as French system which has all laws in a specific 'code' ie the Civil Code, the Criminal Code etc.

Common law is found in both civil and criminal law. They're not direct opposites.

<edit> sorry, looking at it from a practitioner's point of view - ie "I do civil law rather than criminal law".

They are clear cut and decisions of the court are fairly straight forward. You either did it or you didn’t.

Not necessarily, see my earlier post on the differing 'burden of proof' required in Civil and Criminal Law.

Jackson, of there are many exception the rule. We are talking simple explanations here.

You missed your chance there Saboteur

I'm sorry but you are all getting confused by the different contexts that stoner pointed out.

Jeez, armchair lawyers...a little knowledge and all that!

Back to the original question, Stoner's answer is closest to what the OP needs to know.

The rest of you, lawyers and otherwise, are just distracting him.

Civil Law- Contravention=Tort. A plaintiff will sue a defendant. Punishment= Fines, monetary compensation.

Criminal Law-Contravention=Crime. The state (crown) will prosecute a defendant. Punishment=Loss of liberty.

Common Law exists in both civil and criminal law.

I can't get much simpler than that. That is a condensed version of a 10,000 word essay from when I studied Criminal Law. Wish I was as succinct back then! 😀

Ourman dude, you are right. I have shut up now. [img] [/img]

JP - you are saying that Civil law only relates to Tort/delict? How come I did a course in Civil Law that was all about Roman Law that was about lots of other law?

I'd say the OU has it right - the Q is about legal systems.

Yeah basically you're right. Common Law is precedent based, the most serious offense in Common Law being Murder.

You mean there isn't a law written down in a book somewhere that says that murder is an offence? I didn't know that.

You mean there isn't a law written down in a book somewhere that says that murder is an offence?

Yep Murder is the highest offense governed by common law (precedent).

Can't comment too much on Civil Law apart from the basics! But you (plural) need to understand the basics of what Law, Common and Statute, Civil and Criminal, is. 🙂

....and post the occassional LOL cat so that we don't look like a bunch of twits who take themselves far too seriously. Maybe I should start a seperate LOL cat thread...

JacksonPollock - Member
Yep Murder is the highest offense governed by common law (precedent).

Can't comment too much on Civil Law apart from the basics! But you (plural) need to understand the basics of what Law, Common and Statute, Civil and Criminal, is.

Wharrabout regicide?

Anyway YOU need to understand that the question is about legal systems in different jurisdictions not about terminology within one legal system.

Oh and bring on the lolcats!

I do understand the q about legal systems, but in English Law, Common and Statute both apply to Civil and Criminal Law. They are not exclusive of each other. Just adding that dimension thats all.

And what about regicide? I'll let you find the Statute that defines that!

Typical English lawyer! Thinks it's all about his jurisdiction! A mate did most of his law degree in England - lecturers never mentioned to them that Donoghue v Stevenson was a Scottish case FFS!

Anyway I'll let you find the statue for regicide, until you do, you have not proven yourself to be correct.

EDIT - 😉

MidLifeCrashes - thanks v much, OU piece makes a lot of sense...
Cynic-al very valid point, thank you!

Thanks all for the info you lot but please keep the debate going - far more interesting than the day job 🙂

Anyway I'll let you find the statue for regicide, until you do, you have not proven yourself to be correct.

"on the balance of probability" I probably am correct!!

A 26-post obscurantist thread about common law with no mention of the length of the chancellor's foot. That is good going. 🙂

please keep the debate going - far more interesting than the day job

:salute: I know. Why is the most inane nonsence more interesting than (legal) work?

Anyway it appears that regicide is not in itself a crime in the UK, although it had a fairly harsh penalty in historic france

He was first tortured with red-hot pincers; his hand, holding the knife used in the attempted murder, was burnt using sulphur; molten wax, lead, and boiling oil were poured into his wounds. Horses were then harnessed to his arms and legs for his dismemberment. Damiens' joints would not break; after some hours, representatives of the Parlement ordered the executioner and his aides to cut Damiens' joints. Damiens was then dismembered, to the applause of the crowd. His trunk, apparently still living, was then burnt at the stake.

*goes off to research treason*

dammit treason is a statutory crime 😡

If you see a sign saying "Trespassers will be prosecuted". It is legally wrong as trespass is not a criminal offence, it is a civil offence. It should read "Trespassers will be sued".

When out on my bike and I see a sign like that, I immediately want graffiti it with marker pen to what it should say. If I did I could though, technically be prosecuted for criminal damage! 😈

Some trespassing is a criminal offence init? like on MOD land. I wouldn't recommend getting you magic marker out to correct one of their signs. They might use you for target practice.

[edit] double post

I wouldn't say that "murder is the highest crime in the land" False imprisonment and kidnapping are all common law offences. As they are all common law offences they are triable in the Crown Court only and they have an unlimited maximum penalty.

Other thing to remember is that in civil law the burden of proof is "on the balance of probabilities" in the criminal courts is is "beyond reasonable doubt" which is a massive difference in finding someone guilty of an offence!!

The land owner can only tell you to leave immediately. To refuse is trespass for which you can be sued. If you're on MOD land they may question why you're there and try and prosecute on other matters!

Civil Law - I say old chap, if you wouldn't mind terribly, one is apparently perpetrating an offence

Common Law - Oi, scum, you're nicked

Other thing to remember is that in civil law the burden of proof is "on the balance of probabilities" in the criminal courts is is "beyond reasonable doubt" which is a massive difference in finding someone guilty of an offence!!

Precisely!

Although I would argue that to take somebody's life unlawfully is worse than false imprisonment or kidnap. It is treated as such in the Courts as if found guilty, Murder carries a mandatory life sentence. (that is the only recourse available to the judge apart from setting tariffs for parole).

nicely off-beam there BD.

ahhh. The days when "Equity" wasnt for men in leotards and the digruntled chorus 🙂

But remember that life doesn't mean life!

JacksonPollock - Member

Other thing to remember is that in civil law the burden of proof is "on the balance of probabilities" in the criminal courts is is "beyond reasonable doubt" which is a massive difference in finding someone guilty of an offence!!

Precisely!

Although I would argue that to take somebody's life unlawfully is worse than false imprisonment or kidnap. It is treated as such in the Courts as if found guilty, Murder carries a mandatory life sentence. (that is the only recourse available to the judge apart from setting tariffs for parole).

Not forgetting strict liability which crops up in both criminal and civil proceedings...

But remember that life doesn't mean life

Is the OP not asking what the difference is between UK and EU systems of law?

Oh and I thought Trespassing had been criminalised to ease dealing with Hunt Sabs.

double post

I am well aware of the difference between actual sentence and time spent imprisoned I jus thought I'd mention it since we were discussing murder being the most serious offence.

They use the offence of aggravated trespass to deal with the Hunt Sabs (or used to when hunting wasn't banned).

I am well aware of the difference between actual sentence and time spent imprisoned

It doesn't mean life! If someone is sentenced to life imprisonment they can get released on parole, with life conditions, probation etc. We do not imprison people in the UK until they die (which would mean life)!!!!!!

And there you have it, it's open to interpretation. That's why I find Law so interesting, especially criminal law. The nuances of the English language determine how something is defined. Statute law tries to be as prescriptive as possible but it is still open to interpretation. For example until 1994 a man could not rape his wife as it just wasn't recognized in law. Judicial precedent changed that.

If you're interested (and a little bit sad like me)!! See also the two definitions and tests of recklessness (Cunningham & Caldwell) and the test for criminal liability - actus reus (criminal act) & mens rea (criminal mind). Both have to be satisfied for a crime to have been committed.

In relation to recklessness it all used to be between subjective and objective recklessness. The concept of objective recklessness being R V CALDWELL (1982) however this has now gone and is restored to it's former position of R v G & R (2003). This case was 2 children who set fire to some burning newspapers in the rear of a shop yard whilst camping out. The children put the burning papers under a wheelie bin and left them expecting the small fire to burn out. It didn't and caused a million pounds worth of damage.

Under R V Caldwell the children would've been convicted on the basis that the risk of the fire would have been obvious to any reasonable bystander, however their convictions were quashed by House of Lords who reinstated the general subjective element.

How interesting the law changes then returns to it's original. There is some case law relating to assaults that still stands now and it is from 1669 and another from 1853!!!

Ha ha, yeah. Law is constantly being tested and (IMO) is a system we should be proud of. With political & economic systems failing. Law stands up.

Always questioned, often misunderstood, rarely outdone! 🙂

Criminal law I find very interesting. Look at things like the special defences for murder and stuff like that. Oh and proving attempt murder is a nightmare! For murder you only have to prove intent to cause serious GBH OR death, to prove attempt murder you have to prove intent to kill!!!! Hence why they often struggle and get charged with s18 GBH wounding with intent instead of attempt murder as S18 still carries a life sentence.

If someone is sentenced to life imprisonment

Aracer are you just being an argumentative t***!!! I was just saying life doesn't automatically mean life!!! I know some people get life. I'm quite well aware of the law thanks.

Classic example!
http://news.bbc.co.uk/1/hi/england/london/8096423.stm

They got life sentences. The Judge has set the 'tariff' at 19 yrs. Thats 19yrs before they can be considered for parole.

Whether that is enough, is open to debate, its a life sentence all the same. Know where you are coming from though, it rarely means a lifetime incarcerated. 🙂

Exactly there is no way they will die in prison it just won't happen (I know it can but it's so exceptionally rare). But that's exactly what I was saying JacksonPollock.