Civil Law

Civil Law vs Common Law


Indonesian law as inherited from Dutch law is based upon the Civil Law rather than the Common Law system. Although in practice the Indonesian system functions poorly for a variety of reasons, there is no problem per se with either legal tradition.

Still, for expatriates coming from a Common Law country—England, Australia, the United States, Canada, New Zealand and others derived from British law—features of Civil Law can create confusion.

The following article gives a brief comparison of Civil Law—also known as Continental Law or Napoleonic Code Law—and Common Law—also known as British Law.

[Note that the term Civil Law in this sense—as a system of law—is different than the civil law mentioned earlier which means law regulating relations between people and institutions including contracts and marriages (hukum perdata in Indonesia), as contrasted to criminal law (or hukum pidana).]


Read this article if you are interested in the details.
Or skip to Conclusion if you need only the summary.


Comparing Common Law and Civil Law Traditions in Legal Systems


The US and English legal systems are based on a common law tradition which places adversarial interaction at the heart of the process. Mainland Europe, on the other hand, observes a civil law tradition which values inquisitorial proceedings.



There are several different legal traditions represented in the 20th century world. Among these are the common law tradition and the civil law tradition. The common law tradition is the one upon which the judicial system of the United States and Great Britain are founded on. The civil law tradition, on the other hand, operates in most of the rest of Western Europe... The different legal traditions recognize different sources of law and thus prescribe different theories and methods for the administration of justice...

The tradition of common law recognizes two principle elements, those of custom and equity. That which a society or culture considers as its custom dictates that nature of the law in a common law system. An action that the society deems wrong can be considered a crime without its necessarily having been written down or codified. Custom makes precedents which in turn become policies. It is from this logic that the principle of stare decisis comes. The other principle, equity, reflects the common legal tradition’s sense of fairness in the sense that decisions that are obviously wrong should not be reached just so that customs can be preserved (Reichel, 1999, 88-90).

The civil legal tradition... has its roots in the laws of Ancient Rome. The Romans codified their laws into statutes, issued edicts dictating policy, and had jurists whose function it was to apply the existing laws on particular cases... The basic principle of civil law is that of codification. Around the time of Napoleon, it became a goal of the countries in Western Europe to develop comprehensive codes of law. While each time a new code of laws was enacted it voided those that existed before it, the new codes did not gain their legitimacy through their resemblance to earlier codes, but from their integration and assimilation into the most recent code. This is different from in common law where the a new code does not nullify those that came before it but rather enhances and improves it. Where in common law, law is tied to custom and thus exists by fact, in civil law, law exists because the authority that is the government has decreed it so (Reichel, 1999, 90-93).

The designations of common and civil law are artificial conventions as opposed to natural divisions. They are a means to separate and compare the different systems by grouping together common traits and contrasting them to others. In any justice system, there are two main components; substantive law and procedural law. Substantive law, as it relates to criminal justice, dictates what constitutes a crime. As previously explored, the common law basis for this designation is custom whereas the civil law one is a written code (Reichel, 1999, 109).

Procedural law deals with the manner or method in which the substantive law is administered. In common law, the principle of stare decisis ties the process to the basic tenet of custom. Judges are supposed to make their decisions based on how those decision have been made in the past. To balance custom with equity, the common law tradition abides by the principle of particularization in procedural law. Particularization allows a judge the flexibility to distinguish a specific case by its particular facts from those previous cases similar to it. In such a way, the judge frees himself to decide a question based on fairness as opposed to strictly based on custom. This allows for a judge to avoid being forced to come to an unjust conclusion on a question so as to preserve the inviolability of custom (Reichel, 1999, 117).

Under the civil law tradition, a judge is supposed to be able to glean from the law the proper decision through logical deduction. If this is not possible, theoretically, it is the fault of the judge for not understanding the law properly of the legislature for not providing the judge with a sufficient legal code. In truth, the civil law judge cannot always find a specific statute that addresses the particular facts of the case. This is to be expected seeing as the legislature cannot be expected to anticipate every possible scenario. While it is the intent of the civil law tradition to deny judges any ability to “make law,” what happens in practice is that a judge takes the most applicable statute and then demonstrates in writing how he logically went from that statute to the facts of the particular case and then arrived at his decision (Merryman, 1985, 39-45).

From these descriptions of the basic principles of procedural law in the two traditions comes the more specific adjudicatory processes utilized by each. The common law tradition employs an adversarial process while the civil law tradition uses an inquisitorial process. The adversarial process is the one used in the United States. Its origins are in actual physical battles between two contenders where the thought used to be that the winner had truth on their side while the loser must have been guilty. Over time, these battles became highly regulated with procedural rules and eventually evolved into the process that exists today. The basis of the adversarial system is that the truth will be exposed through a kind of competition. Procedure often takes precedence over substance, and so to preserve the purpose of the endeavor, cross-examination and multiple actors are pillars of the process. Cross-examination is reminiscent of the sword fighting of old in that it is a hostile process meant to discredit the opposition. The multiple actors are the prosecuting attorney who asserts the defendant’s guilt, the defense attorney who asserts the client’s innocence, and the judge who acts as a referee (Reichel, 1999, 142).

The civil law tradition prefers and inquisitorial process that stands in stark contrast to the adversarial one. In an inquisitorial proceeding, the judge is not a mere referee but rather the principle actor. The judge endeavors through his personal examination of both witnesses and evidence to determine the truth in a case. The trial itself is much more like a public investigation than the adversarial process’ battle of the attorneys. Trials are meant to be communal efforts at uncovering the truth, and so, in theory, the defendant is supposed to be cooperative. Guilty pleas do not prevent a trial but are rather used as additional evidence. Plea bargaining is not a practice in the civil law tradition because the idea of pleading guilty to a lesser offense is adverse to the concept of applying the law as it was written; a central aim in this tradition. A judge allowing plea bargaining would be considered in the same light as the judge interpreting law as opposed to simply following and applying it. Attorneys in this tradition do not argue the fact of the case. They exist to argue before the judge what interpretation of the statute these facts lend themselves to best (Reichel, 1999, 141, 143).


The original of this article is available HERE.

The Overview of the Indonesian Legal System by New York University earlier mentioned the implications of Civil Law to legal decisions.


Doctrine is opinion of law from jurists or legal scholars. Doctrine is applied to interpret a general conception of law within other legal sources or to provide explanation on ambiguity of laws. Doctrine in and of itself does not have a binding power. It will have a binding power when it is used as consideration in a court decision. It is quite common for litigation cases to supplant their arguments with doctrine and submitting books of legal scholar pointing to a certain doctrine as evidence in court.

For research purposes, doctrine can be found in books, papers, or other media for jurist opinions. Example of notable doctrine is the opinion of J. Satrio, in which books, papers, and lectures have been a common reference for practitioners in the field of civil law, and Yahya Harahap, in which writings have been sought as source of clarifications for both criminal and civil procedural law.



Court decisions commonly referred to as jurisprudence, or case law, or judge made law do not have a binding power other than for the persons or parties being subjected to the decision. This is because Indonesia as a civil law country (which ascribed to European continental legal system), following the Dutch, does not adopt stare decisis principle.

Nevertheless, there are two streams of opinion regarding the same decisions made three times by the Supreme Court or the Constitutional Court. Some jurist classified this as a permanent precedence under the doctrine of faste jurisprudence which serves a somewhat binding power. Other jurists on the other hand, still treat such precedence like any other precedence, i.e., as not having any binding power. They merely have a persuasive force of precedence.