This article is an English translation of Mengenal Perbedaan Civil Law dan Common Law, written by Bernadetha Aurelia Oktavira, S.H., and published on Friday, 6 October 2023.

This article is the second update of the article entitled Differences in Characteristics of Civil Law and Common Law Systems Sovia Hasanah, S.H. and was first published on Friday, 21 April 2017, and first updated on Wednesday, 27 July 2022.

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Civil Law and Common Law Systems

Civil Law and Common Law are two different legal systems. Satjipto Rahardjo in his book Ilmu Hukum (p. 235) is of the opinion that in this world we do not find only one legal system, but more than one. The legal system in question includes elements such as: structures, categories, and concepts. Differences in these elements result in differences in the legal system used.

Satjipto further said that we recognize two different legal systems, namely the Continental European Legal System and the English Legal System. People also commonly use the term Romano-Germanic Legal System or Civil Law System for the former, and Common Law System for the latter.[1]

Regarding the difference between Civil Law and Common Law, in short, the difference between the two can be seen from the characteristics of each legal system. Here are the characteristics of both in detail.

Characteristics of the Civil Law System

What is Civil Law? The Civil Law system originated in mainland Europe and is based on Roman law with the most important features of Civil Law being the codification system of the main legal principles.[2]

What are the characteristics of the Civil Law system? The main characteristic of Civil Law is that it uses a basic division into civil law and public law. Such categories are not recognized in the Common Law system.[3]

According to Nurul Qamar in Perbandingan Sistem Hukum dan Peradilan Civil Law System dan Common Law System (p. 40), the characteristics or features of the civil Law system are:

1. The existence of a codification system.
2. Judges are not bound by precedent or the doctrine of stare decicis, so that the law becomes the main legal reference.
3. The judicial system is inquisitorial.

We will explain the three characteristics of the Civil Law system one by one as follows:

1. The Codification System

The reason why the Civil Law system adheres to the notion of codification is partly due to the political interests of the Roman Empire, in addition to other interests beyond that. Codification was necessary to create legal uniformity within and amidst legal diversity.[4]

In order for the customs that had been established as the king's regulations to be established as generally applicable law, it was necessary to think about the unity of the law with certainty. Therefore, the solution was the need for a codification of law.[5]

2. Judges Not Bound to Precedent

Nurul quoted Paul Scholten who stated the purpose of organizing the organs of the Netherlands about the separation between the power to make laws, the power of the judiciary and the cassation system and the executive power, and it is not possible for one power to interfere with the affairs of other powers, in this way jurisprudence is formed.[6]

3. Inquisitorial system of justice

In this system, the judge has a major role in directing and deciding a case. Judges are active in finding legal facts and careful in assessing evidence.[7]

Judges in the Civil Law system strive to get a complete picture of the events before them from the outset. This system relies on the professionalism and honesty of the judge.[8]

Characteristics of the Common Law System

First of all, what is meant by the Common Law system? The term Common Law is derived from the French "commune-ley" which refers to the unwritten customs in England and which through the decisions of judges are made legally enforceable.[9]

The features or characteristics of the Common Law system are:[10]

1. Jurisprudence as the main source of law.
2. The doctrine of stare decicis/ precedent system.
3. Adversary System in the judicial process.

We will explain the three characteristics of the Common Law System one by one as follows:

1. Jurisprudence as the Main Source of Law

There are 2 (two) reasons why jurisprudence is adhered to in the Common Law system, namely:[11]

1. Psychological Reason

The reason is because every person who is assigned to resolve a case, he tends to look for reasons to justify his decision by referring to previous decisions rather than taking responsibility for the decision he made himself.

2. Practical Reasons

It is expected that there will be unified decisions because it is often expressed that the law must have certainty rather than emphasizing justice in each concrete case.

In addition, according to the Common Law system, placing the law as the main reference is a dangerous act because the rules of law are the work of theorists who may not be different from reality and out of sync with needs. Moreover, with the passage of time, the law may no longer fit the existing circumstances, thus requiring judicial interpretation.[12]

2. Adoption of the Doctrine of Stare Decicis/Precedent

This doctrine substantially implies that judges are bound to follow and/or apply previous court decisions, either made by themselves or by their predecessors in similar cases.[13]

Although the Common Law system is said to apply the doctrine of Stare Decisis, it does not mean that there is no possibility of deviation by the court, by distinguishing, provided that the court can prove that the facts at hand are different from the facts that have been decided by the previous court. This means that the new facts are not similar to the facts that have precedent.[14]

3. Adversary System in the Judicial Process

In this Common Law system, both parties to a dispute each use their lawyers to face the judge. The parties each strategize in such a way and put forward as many arguments and evidence as possible in court. So the litigants are opponents of each other who are led by their respective lawyers.[15]

Does Indonesia Follow Civil Law or Common Law?

Does Indonesia follow the Common Law legal system? According to our research, Indonesia adheres to the Civil Law system. When handling cases, judges will look for appropriate regulatory references and are active in finding facts and carefully assessing evidence, so as to obtain a complete picture of the case.

However, in practice and development, the judiciary in Indonesia no longer fully applies the Civil Law system because it has acquired and applied some characteristics that are identical to the Common Law system.

The Common Law System (Anglo Saxon), especially in Indonesia, can be traced in the sources of law in Indonesia, including jurisprudence and custom. The purpose of this jurisprudence, a decision taken by a judge based on his consideration in deciding a case that has not been regulated in law. Meanwhile, customs are local habits that have been recognized and live in the community, in Common Law terms called "local rules" or kaidah-kaidah lokal in Bahasa Indonesia.[16]

Meanwhile, Prof. Mahfud in a public lecture stated that the state of Indonesia is not a Common Law (Anglo Saxon) or Civil Law (Continental Europe) legal system but a state of Prismatic legal system, where the state is based on the ideals (ideas about law) of Indonesian law. So the existence of these two systems is as a "counterweight" and their adoption is not absolute, there is still a filter process in it.[17]

So, if asked which legal system Indonesia adheres to, the answer is Civil Law, but in practice and development, its application or adoption is not absolute.

Then, the question arises, is it possible for a country to apply a mixed legal system between Common Law and Civil Law? For information, there is no prohibition for a country to use two legal systems at once. This is because the legal system is an open system that must be able to accommodate developments that occur in society.

These are the answers we can provide, we hope you will find them useful.

Reference:

1. Nurul Qamar. Perbandingan Sistem Hukum dan Peradilan Civil Law System dan Common Law System. Makassar: Pustaka Refleksi, 2010;
2. Satjipto Rahardjo. Ilmu Hukum. Bandung: PT Citra Aditya Bakti, 1991;
3. Muhammad Dzikirullah H. Noho, Mendudukan Common Law System dan Civil Law System Melalui Sudut Pandang Hukum Progresif di Indonesia, Jurnal Rechtsvinding.