Just because two legal systems follow the same tradition, it does not mean that they have the same legal culture. For example, both UK and USA both use a common law system, yet their legal culture is vastly different. It is important to keep this in mind when comparing legal systems and the differences between common law and civil law.
Comparative Law:
Comparative law is a field of research that focuses on different legal perspectives and cultures in comparison to your native system. Comparing experience can enlighten us to the systems in place in other countries, so that we can effectively find the benefits and drawbacks of our own system. It causes us to question things that we often take for granted.
For example, Solene Rowan compares the remedies for breach of contract around Europe. [1] She considers how different systems solve the same issue in varying ways. Perhaps the best remedy to an issue could be found somewhere between the different legal systems with the best solutions being to incorporate the advantages of other legal systems into our own.
How to Compare:
‘Same problem, different solutions’ Approach:
This approach compares how different systems apply their law to a given problem.
It can be quite hard to ensure consistency without a risk of misunderstanding or framing the problem specifically to issue in own legal system.
‘Understanding foreign law from the inside’ Approach:
This approach intends to understand the law from an inside perspective.
Questions arise as to how immersed you have to be and how you then compare.
What to Compare:
Law in the ‘books’ (doctrinal) vs in ‘action’ (socio-legal).
Court structure, litigation etc.
Law school structure.
Common Law vs Civil Law:
‘A key feature of the so-called ‘common law tradition’ is that where legislation has gaps or ambiguities, or calls for clarifying interpretation by judges hearing cases, the rulings of the most senior courts … have the force of binding law, and must be followed by lower courts.’ [2]
‘But in the civil law world, judges are something entirely different…, the judge’s function is merely to find the right legislative provision, couple it with the fact situation, and bless the solution that is more or less automatically produced from the union.’ [3]
Origin of the Civil Law Tradition:
Antiquity > Middle Ages > Enlightenment > 18th Century > Revolutions
Roman Law:
Civil law is founded in Roman law.
Very little is known about the legal system at this time, specifically relating to cases and procedures.
Laws were formed from imperial decrees and statutes. Trained lawyers (‘jurists’) held different legal roles, much like modern lawyers.
There was a division of the law between persons, property and obligations.
Emperor Justinian ordered his civil servants to compile all imperial laws (Codex Justinianeus) and earlier information on the rulings of past cases and the principles they were based upon (Digest and Institutes). This complete codification was known as the Corpus Iuris Civilis.
Medieval Period:
The Corpus Iuris Civilis was largely lost until around the 11th century AD. Upon its rediscovery, law schools started to emerge on continental Europe to teach Roman law. Academics would interpret how the work all fit together and add their own commentary. European city states began to adopt the rules, principles and procedures from the Corpus Iuris Civilis as law.
It was viewed that the Roman law was faultless.
The Ius Commune is the mixture of Roman law, cannon / Church law, imperial law, local / regional customs and feudal law.
Age of Codification:
1804: Code Civil (Napoleon - France)
1896: German Civil Code
Civil Law:
Code:
Unlike statutes, a code isn’t a book of rules, but a collection of ideals.
Law should be complete, written down and accessible to everyone. A code provides a written guarantee from the government of rights and obligations between private individuals.
A code is like a pyramid: it works down from more general concepts to abstract ones in a logically organised way. It is mean to be a complete, ‘gapless’ system that can address any problem. The code does not, however, provide a collection of solutions to legal problems.
Reasoning is done through syllogisms (deductive logic). A major premise is the legal norm or principle; a minor premise is the facts. This forms a logical solution.
Case Study: France and its Code Civil
‘The task of statutory law is to express in broad terms the general maxims of the law, to settle principles fertile in consequences, and not to go down in the details of questions which may arise in every matter … The legislator’s science consists in finding in every matter the principles most favourable to a general rule’. [4]
3 books: ‘Of Persons’, ‘Of Property…’ and ‘Of the various ways in which ownership is acquired’.
The highest civil court does not decide the solution to the specific case, it only decides an issue of law / its application and refers the case back to a lower court. It is decided on a matter of logic, not facts.
Similarities and Differences between Common Law and Civil Law Traditions:
Precedence in Civil Law:
Judges function is to apply the law from legislation and apply it to a given situation. The idea of precedent does not apply due to a fear of abuse of power, so past decisions are not an official source of law.
Judge should be the ‘mouthpiece of the law’, not its creator. [5]
‘Although there is no formal rule of stare decisis, the practice is for judges to be influenced by prior decisions.’ [6]
Courts in Civil Law:
Trainee judges attend a ‘judge school’. They do not professionally progress from barristers, but specifically train to be judges after university education. They are given lots of practice cases that they are assessed on as to their application of the law. This is funded and taught by the state.
Many more cases go to the highest civil court in France than the UK Supreme Court. This means that their judgements have to be smaller so they can practically deal with all of the cases. More unpublished reports and commentaries are written, but not by judges.
The work produced by judges of common law jurisdictions must be more elaborate and descriptive as their work creates the law by setting precedent.
‘La doctrine’
La doctrine is an academic legal opinion that is not legally binding but provide persuasive authority to civil law courts. It is held in higher regard than in common law countries.
Legitimacy:
The common law provides reasoning in the judgement that is signed by the judge that wrote it, legitimising the outcome of the court.
Professor Lasser believes that legitimacy derives from:
(1) the split between the published decision and the supporting documents
(2) denying judicial decisions as sources of law, meaning the court is not bound in the future. This enables judicial creativity.
(3) the hierarchy of the judicial profession.
Resources:
References:
[1] Solene Rowan, Remedies for Breach of Contract: A Comparative Analysis of the Protection of Performance (2012) [2] The Secret Barrister 25 [3] John Merryman, The Civil Law Tradition (4th edn) 35 [4] Jean-Étienne-Marie Portalis, Discours Preliminaire (1801) [5] Montesquieu [6] John Merryman, The Civil Law Tradition (4th edn) 47
Comments