The Civil/Common Law Divide and Norway

1. Introduction

In understanding your own country’s legal system, it can be beneficial to look at it from an outside perspective. In order to do this, one needs to attempt to let go of previous biases and teachings to become a more neutral observer.

Comparativists and legal academics have classified western legal cultures into two main legal families, Civil law and Common law (Siems, 2022, p. 50) The purpose of the civil/common law divide is as a tool to help comparativists navigate unknown legal cultures. The biggest difference between them is the adherence to codes in civil law countries versus adherence to case law or other, more fragmented sources of legislation in common law countries. Here we will also look at some other aspects of the legal system that differ between traditionally civil or common law countries.

The following paper will first address some of the key concepts of the civil/common law divide, such as the general ideas of civil law (2.1) and common law (2.2). The Legal Culture Model (as explained in 2.3) will be used to effectively systematize the comparison of the two. We will then move on to looking at these concepts in practice by seeing how they relate to Norwegian legal culture (3), before rounding off with some closing remarks (4). The text will not tackle concepts such as the functionalist method, or other traditional/non-traditional comparative viewpoints. It is also worth noting that this paper has a generalizing purpose, and that there are many exceptions to the “rules” mentioned in this text.

2. Key concepts

2.1  Civil law

The civil law countries core values are predictability in the law and respect for the lawmaker. The law is an important and respected entity, and a result of the democratic processes. Less focus is put on individual rights, and more on the society as a whole (Siems, 2022, p. 53). The professions surrounding law are more highly regarded and distinguished than many others, with a high level of education required to practice. Rules and laws are often stated in codes containing the relevant regulations and policies of one area of law, for example a code of criminal law. This form of positive law, in addition to acts of parliament, are the main forms of legislation in civil law countries. (Siems, 2023, p. 52). Civil law has roots in Roman law, and today make up many of the continental European legal systems (Siems, 2023, p. 51).

2.2 Common law

Common law countries put more emphasis on case law and judges’ interpretations of written law. Examples of common law countries are England and the USA. Common law countries tend to focus more on the individual case, and the individual outcome, and thus often have a more fragmented system of laws in comparison to the civil law countries (Siems, 2023 p. 53). The common law tradition arose in England (Siems, 2023 p. 51), and has spread to many of the commonwealth countries through the British empire's long history of colonization.

2.3 LCM

The Legal Culture Model (LCM for short) was developed by Jørn Øyrehagen Sunde. It is a way of structuring different legal cultures in order for them to be compared in a functional way. The categories of the legal cultural model fall into two sub-categories; Institutional structure, including norm production and conflict resolution, and Intellectual structure, with legal method, internationalization, ideal of justice and professionalization (Sunde, 2023, p. 22). The LCM is helpful for comparativists because it utilizes the functional approach, and breaks each legal system down into key components, which can then be analyzed within the parameters set by the model. Elements will sometimes intertwine naturally, like how internationalization plays a role in norm production through the implementation of international agreements into local law.

The LCM will be used in this paper to help categorize the different elements of a civil and common law system, and to be able to place Norway within this system.

3. Norway in context

3.1 Formal categorization

Norway belongs to the Scandinavian legal tradition, which does not fit neatly into the civil-common law model. Some scholars classify it as a form of Germanic civil law (Siems, 2022, p. 90). Others write that it shares more similarities with “mixed legal” systems (Kjølstad, 2023, s. 816), meaning that it has characteristics of both civil and common law countries (Siems, 2022, p. 90). A further classification places it in a “nordic legal family”, along with its Scandinavian neighbors. This is due to Scandinavian countries having some aspects that do not fully coincide with either civil or common law, and pulling a lot of inspiration from other Scandinavian legislation (Siems, 2022, p. 90)

3.2 Norm production

3.2.1 Generalizations

The idea behind using codes to regulate an area of law is that there exists a way to form extensive policies that would encompass all issues relating to that area of law (Siems p. 52). This is the main ideal in civil law countries. The codes are ratified, or put into effect, by the law-making bodies in the respective countries, and thus have a strong connection to the democratic principles. The power to produce legislation is contained within the law-making body. In civil law countries, case law could be relevant for the interpretation of rules and the application of the law, but are not typically binding (Siems, 2022, p. 66). Civil law countries believe that the interpretation of their legislation is coherent and logical, and that applying the law only leads to one correct result, like an equation with one correct answer. Judgements are therefore often short and with only a limited explanation of the facts or reasoning used to reach the result. Dissenting opinions are not shown, and the judgement-panels speak with one voice (Siems, 2022 p. 63). This also is reflective of the view that the correct application of the law only leads to one result, so there can be no debate.  

Common law countries have more of a “reactive” approach to law making than civil law countries (Siems, 2022, p. 54). Policies arise when the issues they are to resolve are brought before the court, if there is not already an existing practice. In this way, the “law evolves gradually” (Siems, 2022, p. 54). We see many remnants of this in England today, such as the way equity was developed to make the system more suited to individual cases (Franklin, 2023, p. 335). Common law countries do not generally use codes, and positive law typically comes in the form of statutes or acts of Parliament (Siems, 2022, p. 53).

Perhaps the strongest identifying factor of common law countries is the attitude toward previous case law. The Common law countries have case law as their primary source of law (Siems p. 54). There are in some countries statutes being produced by the parliament, such as in the UK. In these cases, the positive legislation will have priority over the case law. Legislation of this sort is often produced as a way of stating and reaffirming consistent case law (Siems, 2022, p. 53). Statutes are not the same as codes, and are much more limited in scope.

Previous case law is given precedence, and is seen as binding for future rulings. The courts are in this instance given norm producing power. It is differentiated between the decision’s ratio decidendi (the deciding factor), and obiter dicta (a comment about something not inherently relevant to the case). The ratio decidendi is the argument that will be relevant for future cases (Siems, 2022, p. 66).

Because of this active need for interpretation of the case law, judgements are usually long and with theoretical dissenting opinions. This is because there needs to be clarity in how the judge(s) reached their conclusion, because the same reasoning might be used for a future, similar case.

Regardless of country, the decision of the court is res judicata, final and binding within the involved parties (Siems, 2022 p. 65).

3.2.2 Norm Production in Norway

Norm production in Norway is primarily done by the parliament (Kjølstad, 2023, p. 814). Instead of a few comprehensive legal codes, Norwegian law consists of many separate statutes for specific areas of law, which is more typical of the common law systems. This has evolved gradually, and allows the law makers to adapt to societal changes more easily.

There is also a large focus on case law, for the most part judgements from the Supreme Court. These are typically given precedence (Kjølstad, 2023, p. 818). However, it does not carry the same weight as it does in England or the US. Norwegian case law is mostly used to clear up any interpretation question in the statutes, as in some civil law countries. There exist exceptions to this, however. As an example, one can look to Norwegian tort law. There exists a limited amount of positive legislation, but most of the principles and reasonings the courts use stem from case law. Here, the judgements are not only used interpretively but are actively acting as the legislation in the field. Tort law is also an area where each individual case can have a lot of unique factors. This makes it hard for the Norwegian legislators to create a statute able to encompass all the facets needed in order to reflect the de lege lata, and ensure continuity and predictability.

The judges in Norway have some legislative capabilities (Kjølstad, 2023, p. 817), and regularly exercise it by filling out the holes in Norwegian legislation, or by suggesting changes to the existing law. The separation of power is not regarded to be equally as strong as in many civil law countries, such as France, but it is still fundamentally viewed as the job of the Norwegian parliament to produce laws.

3.3  Conflict resolution

3.3.1 Specialization

Civil law court systems often have specialized chambers, or entire courts. This is influenced by their belief that laws and codes are specific in their wording, in addition to the large degree of professionalization they see as needed to practice the law correctly (Siems, 2022, p. 56). Civil law countries sometimes also have entire separate court hierarchies for different areas of law, for example one for administrative law and one for criminal and civil cases in France (Bragdø-Ellenes, 2023, p. 565). In common law countries, the courts tend to have a broader jurisdiction. The courts are not specialized, and judges handle cases from many different areas of law.  The other professions, such as lawyers, are more specialized, this allows the court system as a whole to be more generalized (Siems, 2022, p. 57).

The courts in Norway are very general in their fields. There is no requirement of specialized knowledge for  judges, and all cases face the same three-step hierarchical court system with increasing geographical scope. Tingretten, the local court, is the first level. This is followed by an appellate court at a regional level, lagmannsretten, and the final appellate level, the supreme court (Høyesterett), at the top. This is more in accordance with a typical common law court system.

One unique thing about Norwegian court systems is, however, the fact that there are many specialized, fragmented conflict resolving organs where conflicts can be resolved outside of the court system. These include extra-judicial boards (nemnder), semi-judicial consolidation boards (forliksråd), and the governmental law complaint organs. Most cases are resolved at this level before they reach the regular courts. This prevents the courts from becoming overloaded, but it also reduces the volume of officially reported case law (Kjølstad, 2023, p. 811).

3.3.2 Internal structure

By the internal structure, one can look at how the court organizes itself in regards to its composition of judges and the surrounding parties. Civil law countries often have a panel of judges who write and decide together with one voice. Juries, a non-professional panel of peers, are not widespread in civil law countries. This could be explained with the high degree of professionalization of the court and application of the law. It would go against the principle of predictability that someone without legal education or training will decade the outcome of a case. 

In common law countries it is more usual to have a single judge, and have the appeals be decided by panels (Siems, 2022, p. 58).  Juries are also an important part of the common law court system, and are even considered an integral part of the  US legal culture (Siems, 2022, p. 59). Juries have the power in these countries to decide on matters of fact. This can be seen as a reflection of the focus on the individual, in addition to the principle that law is an open discipline.

By the internal structure of the courts, Norway falls more closely under the common law tradition. There is often one professional judge, sometimes accompanied by lay-judges. Lay-judges participate in more serious cases of the local court, or in some appeal-cases (Schei, 2024). They are only used in cases where the background for appeal was evidence-based. Norway repealed its jury-system in 2017 (Keiserud, 2024). The use of any non-professional judges is the main factor that shifts the scale over to common law.

3.3.3 Access to appeal

Civil law countries examine facts more closely upon appeal. This is possible because there is less of a tradition for oral proceedings, and so the evidence and presentations do not change from the original case to the appeal. The lack of a jury is also a significant advantage, and somewhat necessary to be able to re-examine facts, since the jurors often take part in this in common law countries (Siems, 2022, p. 57). Countries differ in how they address an appeal. This will not be discussed further here.

Appeals are not as widespread in common law countries. They have different levels of courts, but the appellate courts can only look at the application of the law, and not re-examine the facts. This is much for the same reasons that it is possible in civil law courts. Because the jury takes part in the examination of facts, the appellate courts cannot be used for this. They only look at the application of the law. Whether appeal is processed is also for the courts to decide (Siems, 2022, p. 58).

Norway has, as mentioned, two courts of appeal. Facts are re-examined in the regional courts, and evidence can be presented again by the parties. The Supreme Court, however, is more akin to the civil law system, and only accepts appeals that are of juridical interest, and only about 100 per year (Kjølstad, 2023, p. 808). The supreme court can examine both the facts and the application of the law, but the evidence is not reevaluated (Kjølstad, 2023, p. 808).

3.3.4 Proceedings in the court

Cases have in later years tended towards being presented orally in both systems (Siems, 2022, p. 60), and this is the process in Norwegian courts as well. In oral proceedings, there are two main structural categories, adversarial and inquisitorial. In the adversarial structure, the focus is on the parties and their argumentation. Judges take a less prominent position, and mostly observe. These are more confrontational, and the parties’ role is a much more active one than in an inquestorial structure. In the inquisitorial structure, the judge takes on more of these responsibilities (Siems, 2022. p. 61). 

Traditionally, proceedings in civil law countries have been written, and it is still done this way in some countries (Siems, 2022, p. 60). Though some have become more oral and adverserial, written and empirical evidence is still preferred. To become even more effective, some countries have seen growth in out-of-court settlements (Siems, 2022, p. 60). This is also the case for Norway, where most cases are settled in dispute councils, internal systems, or negotiations (Kjølstad, 2023, p. 811).

The judge in civil law courts takes more of a dynamic role in the case and is the main active party. Since the courts are so specialized, the judge is the expert on how to interpret the law, and is the “voice” of its correct interpretation (Siems, 2022, p. 61). The role of the parties consists mostly of presenting the evidence, and maintaining the rights of their clients. This less adversarial form of trial is more likely to result in a compromise than in common law trials (Siems, 2022, p. 61). It falls to the judge to establish the facts, and to interrogate witnesses (Siems, 2022, p. 62).

The judge takes a more sidelined role in the common law court, as they are seen more as a mediator between the two parties than the learned, more powerful civil law judge. Since the focus is on the parties and their argumentation, the judge takes more of a “spectator” role (Siems, 2022, p. 61). This is also reflective of the low level of specialization and high number of cases. The judge needs to have a good understanding of the general law, but does not need to be an expert to the same degree as its civil counterpart.

Here, the Norwegian judge will follow more closely the common law tradition. Norwegian judges do participate in witness questioning, and take an active role in proceedings, but the main focus lies on the adversarial parties and their argumentation.

3.4  Legal method

To interpret positive legislation, civil law countries look at the law’s background and objective (exegetical and teleological methods) (Siems, 2022, p. 53). This practice is also done in Norway, as it is part of the classical legal method to look at the law’s preparatory works (forarbeider), to better determine how the law should be interpreted.

The law, in civil law countries, is viewed as a machine, or a mathematical equation. If you input A, then the result will be B. The codes are the law, and the result of a case is not the work of the judge, but rather the result of the function (Siems, 2022, p. 55).Further, policies can be used analogously to help cover holes in the legislation where these laws would provide a reasonable result (Siems, 2022, p. 53). In this sense, the civil law system is pragmatic.

As mentioned above, the primary source of law in common law countries is case law. In cases where common law countries have a code or statute they refer to, it will be interpreted in its literal meaning so long that it leads to reasonable results (Siems, 2022, p. 54). This is as long as the code or statute had the purpose of codifying consistent and long-standing case law (Siems, 2022, p. 53).

It is not as acceptable to bend the law in civil law countries, and they are in general more loyal to the state and the lawmakers (Siems, 2022, p. 53). Common law countries focus on the individual, and have a long history of having a more pragmatic approach to the law in cases of unreasonable results, as in the development of equity in England and Wales (Franklin, 2023, p. 335).

Norwegian courts do have a history of “filling out” the law, and bending it in cases where the result would be unreasonable, in the form of a fariness-evaluation (reelle hensyn) (Kjølstad, 2023, 821). Norway’s legal methods are typically said to be reflective of Nordic legal realism (Kjølstad, 2023, p. 825). Legal realism places the law’s purpose and interpretation in how it is understood and used by the highest practitioners of the law, here, the Supreme Court. The court sets the standard, and the rest of the legal systems follows their example. (Kjølstad, 2023, p. 825).

3.5  Internationalization

Not many typically common- or civil law traits arise in regard to internationalization. Looking at a country’s character of internationalization is, for instance, analyzing its degree of dualism or monism, and how this affects their participation in international treaties. It is worth mentioning that most international law follows more closely a civil law tradition. Most norms produced are positive sources of law, and are in the case of the EU required to be implemented into positive law in its member states. This proves difficult in regards to stare decisis, and there are specific rules on the adoption of international law into many common law systems (Franklin, 2023, p. 365). In a country like England, this might have contributed to the feeling of losing sovereignty and independence to the EU, and may have been a background factor leading to them leaving in 2020.

Norway is a member of several international organizations and treaties. Most prevalent is the EU through the EEA agreement. Directives are transferred into the national legislation at a statutory level, or even slightly higher in the hierarchy of norms (Kjølstad, 2023, p. 839).

3.6  Ideal of justice

Civil law countries often value predictability and certainty of the law, as seen in the legal cultures of France (Bragdø-Ellenes, 2023, p. 601), and Germany (Koch, 2023, p. 639).Some common law countries value fairness and commonality over predictability. This is especially clear with the importance of the jury in American court systems (Siems, 2022, p. 61).

Norway has predictability as its main ideal of justice (Kjølstad, 2023, p. 820). Statutes are more rigid than the common law judgements based legislation. It is made to fit into the already existing legislation, without regards to an individual case (Kjølstad, 2023, p. 820), this makes it more predictable for the citizens.

It does however, also value fairness (Kjølstad, 2023, p. 821). In judgments one can find that the court sometimes attributes weight to “value-based assessments or policy considerations (reelle hensyn)” (Kjølstad, 2023, p. 821). Debate has been ongoing for whether it should be acknowledged as a formal source of law, and has been referenced directly in many Supreme court cases in later years (Kjølstad, 2023 p. 822).

3.7  Legal professionalization

It is often harder to become a judge in civil law countries. This is mostly because it is considered a strong academic discipline, and is based on the “learned law” (Siems, p. 58). Even with a degree the position of judge is highly exclusive, and only a few achieve this title (Siems p. 58). The position of judge in the civil law system is a lifelong commitment for many (Siems, 2022, p. 59).

Common law countries have a less education-focused approach to becoming a judge, it is seldom a separate career path, and in theory no formal qualifications are needed (Siems, 2022, p. 58).  A variety of different routes are taken; in England, many judges are previous barristers, and in the USA, many judges are appointed via elections (Siems, 2022, p 59).

In Norway, the judge profession is on par with that of a lawyer. Both professions start with a general education in law, before starting a specialized study period, where you work as a judge or lawyer “in training” (Kjølstad, 2023, p. 836).

The route to becoming a lawyer differentiated by the involvement of the state. In civil law countries, where the profession is more “guarded”, the state ensures quality by creating competition in the universities, or by having higher and more specialized requirements in order to practice (Siems, 2022, p. 62). In common law countries, the state has not set as high requirements, and typically a test or exam is set by the profession itself to ensure some level of competency. A degree is still recommended (Siems, 2022, p. 63).

Norwegian law practitioners fall more into civil law’s concept of learned law, although the education is much more generalized than many other countries (Kjølstad, 2023, 836). Not all jobs in the legal fields require a law degree at all, like some law clerks. This shows that Norway also exhibits some of the common law ideal that the law and the interpretation of it, should be open to all. That it is not merely a homogenous interpretation of the law that is important, but rather a more individual evaluation of each case.

The focus of the common law lawyer is mostly on helping the client win the case, their loyalty is to them. Civil law lawyers are also there to help their clients, but typically feel more of a public responsibility to society (Siems, 2022, p. 63). This ties back to the view on law being either a fixed, “learned” entity, or something more fluid created by the individual case.

4. Closing remarks 

As mentioned in the introductory disclaimer, these are generalizations for educational purposes. The reality is much more complicated, in how countries realistically both adopt laws and customs from each other, and the fact that there are many other factors at play. For example religion is an aspect that is not discussed in this classification, and neither are many other historical factors that could influence a legal culture.

Norway does not fall easily under a civil or a common law tradition. It has similarities to both, such as a more civil law approach to legislation, but a more common law approach to the structure of its courts. It is closer to a “mixed system”, or something even more separate from this divide, in a separate category of “nordic”.

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