STUDI KOMPARATIF DALAM SISTEM HUKUM CIVIL LAW DAN COMMON LAW

Abstrak

Civil law and common law are two legal frameworks that dominate the global legal order, each with its own characteristics, sources, and methodologies. Civil law is rooted in the Roman-Continental tradition that prioritizes written legal codification as the primary source. This system places the legislative role at the center, where law is formed through comprehensive and systematic legislation. Countries such as France, Germany, and Indonesia adopt this system, with judges acting as passive interpreters who apply the law without creating precedents. In contrast, common law developed in England and spread to Commonwealth countries and the United States. This system relies on judicial precedent as the primary source of law, making it more flexible and evolutionary. Judges in common law have broad authority to form law through interpretation of concrete cases. The fundamental differences lie in the source of law (codification vs. precedent) and the role of judges (passive vs. active). However, in contemporary practice, there is a convergence between the two systems, for example through the adoption of equity principles in common law or the use of jurisprudence in civil law. Understanding these two systems is important for analyzing global legal diversity and its implications for legal certainty, justice, and social dynamics.