Civil law vs common law

In Australia, two common types of law are civil and common. Each of them has its regulations, bylaws, and dispute resolution remedies. 

This blog will help readers understand how the legal system in Australia operates by explaining the differences between civil law and common law. We'll break down these distinctions in a straightforward and easy-to-understand manner.

What Is Civil Law?

Civil law is a type of law that governs disputes between individuals or organizations. It is not about criminalizing people but about resolving a conflict. If someone has a problem with their neighbour over some property or even an issue about rent, that would go to civil court.

Key Features Of Civil Law

1. Written Codes and Statutes: In civil law, most rules are developed in codes and statutes. Everyone must follow the same rules.

2. The Role of Judges: The role played by judges in the civil law system can be exemplified as that of a referee. These are the principles that they retain from their code and employ to adjudicate cases. Judges never create new laws; they simply interpret existing ones.

3. Legal Precedents: In civil law, past court decisions are less important compared to common law. If a written code conflicts with a previous ruling, judges don’t have to follow the earlier decision.

What Is Common Law?

One of the other systems with which law has developed is common law. It comes from customs and prior decisions by judges. Common law is an essential concept in the Australian legal system.

Key Features of the Common Law

• Judicial Decisions: The decisions of the judges in past cases are very important. These decisions make law, and future cases must follow them. This is what "legal precedent means."

• Judges: This is where judges come in. I think most US/Canadian law students realise that the judge doesn't just apply arbitrary rules, but people undermine how powerful the role judges play even within their working material. They interpret laws and issue decisions (considered law if it becomes a new rule). Their ruling helps provide the law that develops.

• Flexibility: The common law offers more flexibility. This is a basis for comparison and can evolve along with new cases. That way, the law can grow to change with society.

Civil law In Australia

Civil law in Australia is a branch of the Australian legal system applicable, (in addition to other areas) for contracts, property, and family matters. Here are some examples:

1. Contract Law: If two people have a business agreement and one side does not do what they promised to, then the other person can take that individual party to civil court under contract law.

2. Property Law: Land, housing, and real estate come under property law. Civil courts hear healthy property arguments about land ownership, housing funds, and other properties.

3. Family Law: Divorce, child custody, and adoption cases are a part of family law.

4. Torts: If someone is hurt because of something another person did or failed to do (like report for work on time), they can bring a claim to civil court. This is called a "tort."

Common Law in Australia

Australia is also a significant country for common law. It can plug gaps in unwritten laws and be able to provide answers to new problems. Some key areas include:

• Negligence: If someone is negligent and causes injury to another, but there is no intentional conduct involved, common law principles of negligence are used to establish who will be held responsible.

• Contracts: A large segment of contract disputes is applied under civil law, however, common-law principles concern the interpretation of contracts as well.

• Criminal Law: It is also important as it ensures fair treatment of all under the law, no matter how specific a situation is, which balances well against criminal law, where laws can be more intentional of common principles in detail.

How Civil Law and Common Law Work Together ?

In Australia, common law and civil law often blend. Written law (civil law) would set out the basics, with judges themselves using common-law principles to interpret them in particular cases. Together, they make the legal system predictable and flexible.

Consider a car accident as an example.

You are a driver in a vehicle who fails to stop at the red light, colliding with another car. How might civil and common law address the above instance?

• Civil Case: The driver who was hurt may also sue the other in a civil court for damages. The court will refer to the written traffic laws to determine fault.

• Common Law: In cases in which there is no written law, the judge will examine prior decisions and apply common law principles.

Further Information About Civil Law in Australia

Civil law allows people to work out their differences without involving the police. Here are some more examples:

• Consumer Rights:e.g., if someone buys a toy and it breaks the next day, they can use civil law to get their money back or a new toy.

• Employment Law: If they feel that unfair treatment has not been rectified, workers may also bring employment law cases before a civil court.

• Environmental Law: For example, when a factory pollutes a river, people can use civil law to get an injunction and make the company clean up the mess.

It's kind of like an instruction manual for how everyone should behave so we can all coexist and work together on trying to solve the fact that life is incredibly hard.

Common Law in Australia.

Common law means that there is this big book of stories, so to speak, written by judges over many years. These stories help guide judges in determining the proper direction to take with their cases. Here are some more examples:

• Property disputes: In the case of two men quarrelling over a piece of land, the judge would take into account precedents available in fixed records to rule who is right.

• Injury: If someone gets hurt because of another person's carelessness, common law helps figure out how much money the injured party deserves.

• Business disagreements: If two companies disagree about a contract, then it will be up to a judge to use common law principles and decide whether the terms of the agreement are clear enough for one side or another.

• Common law is important for the legal system to be both fair and elastic. So that things can change if other scenarios pop up (a less conservative approach to updating the law).

Differences in Detail

• Civil Law Procedure: Civil law cases are principally decided by the reading and application of laws. A judge under common law also looks at what other judges have done in the past as to how they have dealt with a particular case.

• Formal Reasoning (Legal Reasoning): Civil law judges look to the precise rules of written codes. The decisions of common law judges are made after reading such broad principles and previous cases.

• Consistent Outcomes: Civil law is based on written rules to promote consistent outcomes. Common law similarly seeks consistency, but by setting precedents.

Civil Law: Pros and Cons

Pros:

• Clear rules: Because the rules are written, we can know what the law is.

• Predictability: This means that people can predict the outcome because the rules are consistent.

• Equity: All people are playing by the same rules, which means that it should be fair.

Cons:

• Inflexibility: The law follows written rules, so it takes time to change.

• Complexity: Due to a vast range of laws and codes, a less complicated understanding is needed.

• Reduced flexibility: Judges have decreased their independence to alter the law in novel situations.

Common Law: Pros and Cons

Pros:

• Mutable nature: The law modifies and adjusts according to the changed conditions.

• Specific Decisions: Orders could be granted based on the individual case by judges.

• Evolution: The law also evolves with many decisions.

Cons:

• Flexibility: Results can be more difficult to predict because the law may change.

• Unpredictability: Different judges could or would rule differently for similar cases.

• Judges' convenience: The law depends heavily (if not more) on the individual judgments of each judge.

Civil Law Vs. Common Law In Everyday Life

The truth of the matter is that both civil law and common law in Australia impact your everyday life. Here are some examples:

• Buying Goods: Civil law becomes consumerist when we are shopping at a retail store.

• Road Safety: The common law plays a role in questions of road safety (excluding federal law), such as who is responsible for accidents and injuries.

• Workplace Rights: Civil law deals with workplace rights, and common laws are used to interpret these protections.

• Protection of the Environment: Civil law dictates the standards for protecting the environment, and common law is a part of it.

The Symbiosis Of Civil Law And Common Law

Civil law combined with common law is a sign of a fair legal system. If, for example, a new situation in society arises that is not addressed by written laws, the judges would implement common law principles to enforce just decisions.

That way, we can rely on the legal system here, and it will not only solve our old problems but new ones as well.

Conclusion

Anyone who needs to live in Australia needs to know about the variations in civil regulations and common regulations. Common law is based on judicial decisions and precedents, while civil law uses written codes to resolve differences between individuals.

Each of the two systems has its advantages and disadvantages, but they complement each other to ensure a good, just legal system that is both flexible and unbiased.

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