Both the common law and the civil law system of jurisprudence ultimately aim to do the same thing : formulate the general rules that uphold peaceful cooperation and allow for the resolution of conflicts between individuals and then apply them in concrete situations through various organisations such as courts, tribunals, dispute resolution agencies and so on.
Both the common law and the civil law contained, at least in the beginning, a principled defense of individual rights (property rights included) and a strong presumption in favour of individual freedom.
However, despite these and other similarities, there are some fundamental differences between the two systems of law which are crucial to understanding not only the different philosophical conceptions of law harbored by the two systems, but most importantly – and strongly linked to this - the different political presupposition contained by each and finally why and how the meaning and function of law has been corrupted significantly more in the continental civil law system then under the anglo-saxon legal tradition.
The fallowing article tries to address the differences between common and civil law head on and, in my opinion, it does the job brilliantly :
Noga Morav-Levigne – Common Law, Civil Law and the Administrative State : Early Modern England to the Lochner Era
In going beyond Dicey’s critique of the “inequality under the law” brought about by the creation of a separate administrative law branch in the continental legal tradition (essentially to suspend the individual legal responsabilities of bureaucrats and politicians for their action) or Hayek’s critique regarding the rational constructivist propensities inherent in the philosophical foundations of continental civil law, the author of the above-mentioned paper strikes at to root difference between the two legal systems, namely the political presuppositions of each system : as he points out very clearly, the common law confers the authority or the legitimity of lawmaking, particularly when it comes to interferences with the rights and liberties of individuals, to the people themselves, through judges and juries while in the civil law systems this authority is conferred to the Sovereign, the politicians or the bureaucrats that is. In other words, in the later case there is clear presumption in favour of collectivism and statism as oppose to the former.
